On the evening of Tuesday 13 September 2016, a group of lawyers, tech-enthusiasts and movers and shakers in the digital space congregated at Bristows for a rapid response seminar on the Court of Justice of the European Union’s (CJEU) decision in GS Media (Case C-160/15), co-organised by Bristows and the IPKat (the leading IP blog). Chaired by Mark Brown (Bristows), the panel featured Theo Savvides (Bristows), Aimee Nisbet (Hearst Corporation), Eleonora Rosati (University of Southampton and IPKat) and Nicholas Saunders (Brick Court Chambers).
“Communication to the public” – the judicial landscape
Mark Brown kicked off the panel discussion by introducing GS Media as the latest decision in a line of cases on the “communication to the public” right (emanating from Article 3 of Directive 2001/29/EC, the “InfoSoc Directive”). He reminded the audience that in order to understand the context of Article 3 it is important to look at certain recitals of that Directive, namely 9 (which suggests that copyright should be afforded a “high level of protection”), 10 (which states that the investment in producing creative and artistic work must be awarded by adequate protection of IP rights), 23 (that the right of “communication to the public” should be given a broad interpretation, covering all communication to the public not present at the place where the communication originates) and 31 (that the interests of rightholders must be balanced against the interests of users of the works in the electronic environment). Mark commented that the CJEU has attempted to balance these interests but this has resulted in decisions that have (at times!) been unclear. The panel provided a brief reminder of the key UK and CJEU cases dealing with the meaning of (1) an act of “communication” and (2) a “public”, both in the context of re-transmission of broadcast signals (SGAE v Rafael Hotels Case C-306/05, SCF v Marco Del Corso Case C-135/10, ITV v TV Catchup Case C-607/11 and Reha Training v GEMA Case C-117/5) and P2P networks (Polydor v Brown  EWHC 3191, Twentieth Century Fox v Newzbin  EWHC 608 (Ch), Dramatico Entertainment v BSkyB  EWHC 268 (Ch) and EMI Records v BSkyB  EWHC 379 (Ch).
After briefly running through the Svensson decision, the leading CJEU decision on copyright and clickable links until GS Media, Aimee Nisbet gave an insight into the practical problems raised by hyperlinks in the print and digital media sphere, both for rightsholders and publishers. As a rightsholder, when internet users post links to unauthorised or leaked content the primary concern is often brand or reputational damage, particularly as it can be impossible to ensure that all such links are taken down once a leak has gained attention. Putting her publisher hat on, Aimee then explained that it was important to put into place pragmatic policies, for example not linking to leaked or clearly unauthorised content and instead contacting the rightsholder directly to seek authorisation. To do otherwise would risk being left with holes in a publisher’s content if the link later has to be taken down.
GS Media – a discussion
It was then time for the panel to turn to the meaty part of the seminar: the GS Media decision, (which, with its nude photos and relationship to Playboy magazine, was (probably rightly!) described by Theo Savvides as the raciest case to ever cross the CJEU’s bench).
Eleonora explained that, in his Opinion on 7 April 2016, Advocate General Wathelet held that the provision of a hyperlink to a work made available on a certain website without the initial consent of the relevant rightholder and where it is freely accessible is not be regarded as an act of “communication to the public”. This was a very liberal approach to linking, perhaps taken on the basis that linking protects freedom of expression which is the ‘very sense’ of the internet.
As keen readers will be well aware by now, the CJEU departed slightly from this position finding that if a person provides such a link, this will not be a “communication to the public” provided that (1) the link is provided without the pursuit of financial gain; and (2) the person did not know, or could not reasonably have known, the illegal nature of the publication of those works. If the link is provided for financial gain, knowledge must be presumed.
This prompted a lively discussion regarding what constitutes “financial gain” for these purposes (as, despite being central to the decision, it was sadly not defined by the CJEU). Might links posted on a blog where there is no direct income from the link itself but the blogger obtains an income from adverts count as posting the link in “the pursuit of financial gain”? What about hyperlinks posted by individuals on their LinkedIn profiles, arguably posted for the furtherance of one’s career – might these fairly be described as posted in “the pursuit of financial gain”? Could all links posted in a business context be said to be for “financial gain”?
Eleonora explained that the approach taken by the CJEU in the past has been, loosely, that the providing a link is for profit if it makes that person’s business or establishment more attractive. How national courts construe the “pursuit of financial gain” in future linking cases remains to be seen…
Turning to the second part of the GS Media test, the ‘knowledge’ requirement, Theo Savvides highlighted the difficulties surrounding an obligation on internet users to verify whether or not the content they are linking to is authorised. This could be a harsh obligation when such verification might be impossible. Further, introducing a subjective element to primary copyright infringement appears to be at odds with the primary/secondary infringement divide.
Aimee Nisbet commented that in the context of her business at the Hearst Corporation, the GS Media decision is likely to be a double-edged sword: on the one hand helping it as a rightsholder but on the other hand being detrimental to its publishing activities. By way of illustration, Aimee explained that on average each story published on Hearst Corporation’s websites contains approximately 10 links (these links may be to advertisements, other publications, videos and/or music on YouTube). On the basis of the publication of approximately 100 articles a day, it would be impossible to verify every link and the content to which it is linking. In the post-GS Media world, publishers will need to be aware of the risks and tailor their approach accordingly.
Leaked Directive on copyright in the Digital Single Market
The panel then turned to a brief discussion on the leaked draft Directive on copyright in the Digital Single Market (the actual proposals, including a Directive, were unveiled by the Commission on Wednesday).
Eleonora explained the provisions of draft Article 13, which requires intermediaries that store and provide access to large amounts of works uploaded by their users to take appropriate and proportionate measures to ensure the functioning of agreements concluded with right holders and to prevent the availability on their services of works or other subject matter not covered by such agreements, including through the use of effective content identification technologies (NB. Article 13 in the recently-released Directive appears to be even more stringent). Eleonora questioned how this is compatible with Articles 14 (the hosting exception) and 15 (no general obligation to monitor) of Directive 2000/31/EC (the “E-Commerce Directive”), and also said that it is unclear whether hosting providers are those that actually commit acts of communication to the public (it is rather the users of their services).
Aimee then went on to discuss the new ‘ancillary right’ introduced by draft Article 11. This right provides the publishers of newspaper publications with the rights contained in Article 2 (the reproduction right) and Article 3(2) (making available to the public) of the InfoSoc Directive for the online use of their news publications. (NB. Article 11 of the proposed Directive unveiled on Wednesday refers to “press publications” rather than “news publications” – the new term is potentially broader.) This ancillary right has a duration of 20 years after the publication of the news publication. Aimee commented that this provision appears to be aimed at stopping news aggregators copying data and preventing users from visiting the publisher’s online sites. Similar laws have already been implemented in Spain and Germany – Aimee explained that a Spanish lawyer has made her aware that this has led to certain search engines de-listing news publishers from their indexes. This has forced the news publishers to strike individual agreements with the search engines, effectively agreeing that the law does not apply to them, which must make us question how effective such a provision will actually be.
Nicholas Saunders then explained the draft Articles 14 and 15 which provide for fair remuneration for authors and performers by way of contract adjustment mechanism when the remuneration agreed is disproportionately low compared to subsequent revenues. After a question from the floor there was some discussion as to whether this would work in a similar way as for patent bonuses. Nicholas commented that this could be quite an alarming development forcing parties to be backward looking after the event.
In closing remarks, the panel concluded that the GS Media decision did not “break the internet” but nor does it provide a solution to many of the questions still raised about linking.
Thanks must go to the panellists for being ready to dissect the decision so soon after it was handed down.