Communication to the public in Europe: recent developments in EU copyright law in relation to digital media services
This paper, prepared for the 2018 AIPLA Annual Meeting in Washington, DC (slides available here), provides an introduction to the remarkable recent body of case law of the Court of Justice of the European Union (CJEU) on the author’s exclusive right of communication to the public in relation to digital media services. It places this case law in the context of purpose and setup of the CJEU’s preliminary reference procedure, and of pending EU legislative developments that will further muddy the waters for providers of digital media services.
In the last two years, the CJEU has ruled that hyperlinking to a work on a third-party website that you have reason to believe was uploaded unlawfully is a communication to the public of that work;[1] that selling fully-loaded Kodi hardware boxes is a communication to the public of the content that users view on it;[2] that torrent-indexing sites infringe copyright;[3] that offering a cloud-based personal video recorder service infringes the communication to the public right; and that publishing a school presentation containing a photo taken from a travel website requires the photographer’s permission.[4]
With its recent decisions, the CJEU has all but abandoned any notion that the author’s exclusive right to authorize “communication to the public” refers to a technically, objectively delineated set of actions that involve the actual transmission of protected works – notwithstanding the recital to the 2001 EU Copyright Directive which ostensibly limits the scope of the right to the transmission or retransmission of a work to the public not present at the place where the communication originates.[5] The Court has redefined the concept in considerably more subjective and functional terms. Indeed, one might be forgiven for concluding that the CJEU essentially considers any deliberate for-profit facilitation of access to copyright-protected information to require the rightholder’s permission.
Understanding the CJEU’s recent decisions about the communication to the public right, and identifying a broader coherence in the case law as a whole, is a challenge for practitioners both in the EU and beyond. Lawyers not familiar with EU procedural law face an additional interpretative hurdle, in that the CJEU’s role and procedures are unique and subtle. The CJEU is not a supreme court, and its role is entirely different to that of, for example, the US Supreme Court in shaping US copyright law.
Adding a further layer of complexity to EU digital copyright law, a proposed Directive on Copyright in the Digital Singe Market, currently being finalised,[6] seeks substantially to erode the safe harbour regime for online intermediaries, providing that “online content sharing service providers” bear primary liability for their users’ infringing uploads unless they install proactive copyright filters. The proposed directive will also give news publishers additional rights to restrict digital uses of their press publications, posing new challenges to the way that news is referenced and shared online. Continue reading “Communication to the public in Europe”