In my last post, I referred to the questions posed to the CJEU in the Swedish Svensson case. They directly address the key question whether the provision of a clickable link on a website is an act which falls within the meaning of “communication to the public” for copyright purposes, and therefore requires the permission of the right holder in the work accessed by the link. The case is another of those involving news aggregation (as to which more below).
On February 15, a group of European academics published a paper relating to the case. The paper is unusual, to the extent that it is not presented as an opinion on the issues, but specifically on the reference to the Court. The group is the European Copyright Society, which describes its nineteen members as “renowned scholars and academics from various countries of Europe, seeking to promote their views of the overall public interest”. The ECS “wishes to take the opportunity to put on record its views of the issues before the Court in Case C-446/12 Svenssen.” The group does indeed constitute an impressive roll-call of many of the most prominent academic commentators on copyright and information law. It is presumably the intention of the group to offer assistance to the Court.
In its conclusion, the ECS paper says this:
“In this case, the Court needs …. to consider the effect of its ruling. If hyperlinking as regarded as communication to the public, all hyperlinks would need to be expressly licensed. In our view, that proposition is absurd”.
However it also points out that, while “hyperlinking in general should be regarded as an activity that is not covered by the right to communication to the public…..this does not mean that creating hyperlinks in no circumstances involves liability. In fact, as is clear from national case law, different forms of hyperlinking may indeed give rise to the following forms of liability:
(a) Accessory liability (particularly in respect of knowingly facilitating the making of illegal copies);
(b) Unfair competition;
(c) Infringement of moral rights;
(d) Circumvention of technological measures.”
In relation to these possibilities, the interesting comment is added: “Only the last of these has been the subject of harmonisation at European level and thus falls within the competence of the Court of Justice”. In other words, while national legislation may have provisions which can be used to render linking an infringing activity (such as the prohibition in Irish law on authorising infringement), it is only in relation to those of the possibilities that have been harmonised in EU law (the single one being where there is circumvention of a technological measure such as a pay-wall) that the ECJ has competence.
It may be a year before the Svensson case comes before the Court.
Meanwhile, at national level, different compromises are emerging to the question whether links to and publication of snippets from newspaper sites ought to command a licence fee.
In France, publishing associations have been pushing the issue for some time. Against the background of a proposal by the Government to legislate for a “snippeting right”, Google countered with a threat to stop indexing French news sites. In early February, with the aid of a Government-appointed mediator, a settlement was reached in which Google will create a €60 million Digital Publishing Innovation Fund designed to help French publishers to increase their online revenues. This is not the first such settlement. A similar, but smaller arrangement was made a number of months ago with Belgian newspapers.
Opinion seems to be divided on whether the newspaper industry or Google was the victor in the latest engagement in Germany. Not a settlement in this case, but a piece of legislation passed by the Bundestag in the teeth of some pretty heavy lobbying. On March 1, the Financial Times reported: Google wins German copyright battle, while the New York Times went for German Copyright Law Targets Google Links.The law in question grants publishers the right to charge fees to search engines and other online aggregators for reproducing their content, but, in a last-minute change to the text, the Parliament wobbled and added an exclusion for “single words or very small text excerpts”. What is a “very small excerpt”? Well, who knows? A bonus for lawyers perhaps.
The German legislation has yet to pass the upper house of Parliament and there is no guarantee that this will occur. Google has said that the law “was not necessary because publishers and Internet companies can innovate together, just as Google has done in many other countries”.
