Hyperlinking as a problem: Does the CJEU case law work out? · GRUR-RR 2017, 89 – Kein Vollgas...

Hyperlinking as a problem: Does the CJEU case law work out? GRUR meets Brussels Workshop 2017 Communication to the public: Hyperlinking and hosting platforms

Prof. Dr. Jan Bernd Nordemann Attorney-at-law, certified IP attorney; Berlin

Honorary professor at the Humboldt University

Brussels,

June 12, 2017

Starting Point

Prof. Dr. Jan Bernd Nordemann, Berlin 2

• Is linking a communication to the public

(within the meaning of Art. 3 (1) Copyright Directive 2001/29)?

• If it is a communication to the public:

No legal linking without authorization from right holder

CJEU Svensson (C-466/12) - 2014


• Claimants Svensson and others were journalists, publishing

copyrighted article in the Swedish daily newspaper “Göteborgs-

Posten”

• Defendant Retriever Sverige was a website, publishing links i.a.

to “Göteborgs-Posten” articles



• Linking to works freely available on another website with the

consent of the right holder:

communication to the public (-)

• No new public reached

• This includes links using framing



• Linking to works freely available on another website with the

consent of the right holder:



• This includes links using framing

• Linking which circumvents restrictions for access by the

public: communication to the public (+)

• It reaches a new public

• Access restriction examples: Paywall, Session-ID



• Examples from German case law for circumvention of access

restrictions:

• Circumvention Session-ID: BGH GRUR 2011, 56 – Session-ID




restrictions:

• Circumvention Session-ID: BGH GRUR 2011, 56 – Session-ID




restrictions:

• Circumvention metered paywall: OLG (Court of Appeal) Munich

GRUR-RR 2017, 89 – Kein Vollgas [No full throttle]



• New public reached in cases, where no restrictions, but works

difficult to find without the link? Dutch Hoge Raad Svensson

referral - question 2 (a)



• New public reached in cases, where no restrictions, but works

difficult to find without the link? Dutch Hoge Raad Svensson

referral - question 2 (a)

• But see CJEU Soulier (C-301/15) – 2016 para. 36:

• “… the Court held that, in a situation in which an author had given

prior, explicit and unreserved authorization to the publication of his

articles on the website of a newspaper publisher, without making

use of technological measures restricting access to those works

from other websites, that author could be regarded, in essence,

as having authorized the communication of those works to the

general internet public.”

CJEU GS Media ./. Sanoma (C- 160/15) - 2016


• Photos of the Dutch TV star Brit Dekker for

“Playboy”, exclusive rights with publisher Sanoma.

• Photos were leaked on the internet

before publication in the Playboy.

Website GS Media published link

to photos.



• Linking to works freely available on another website without

the consent of the right holder: communication to the public?

• Need to differentiate:

• Linker does not know and cannot reasonably know that the

linked content illegal:







• Linker does not know and cannot reasonably know that the

linked content illegal:


• Linker knew or ought to have known that the linked content

illegal:

communication to the public (+)






• Duties for linker crucial (“cannot reasonably know”, “ought to have

known”):

• CJEU sets different duties:

• Individuals: difficulty to judge (e.g. sublicenses, later change of

content); notification by right owner seems required

• For profit linkers: Duty to check to ensure that the work is not is not

illegally published; rebuttable presumption that linker ought to have

known



• First German case law: LG (District Court) Hamburg,

November 18, 2016, 310 O 402/16

• Link to illegal adaptation of a photo

• What is a for profit linker?

• Links generate a profit or

• The website (linked from) in general operated with a profit aim

• (+), if education materials are sold on website



• BUT: Linking to work freely available on another website

without the consent of the right holder, but work freely

available on another website with the consent of the right

holder:



• Unclear, if obligation of linker after notification to direct link to legal

content

CJEU Filmspeler ./. Brein (C- 527/15) - 2017


• Mr. Wullems offered his „Filmspeler“ for sale, a media player

with pre-installed add-ons, which contained links to illegal film

content on streaming sites

• Full knowledge of Mr. Wullems that links led to illegal content,

advertisements:

• “Never again pay for films, series, sport, directly available without

advertisements and waiting time (no subscription fees, plug and

play) - Netflix is now past tense!”

CJEU Filmspeler ./. Brein (C- 527/15) - 2017


• Confirmation of GS Media/Sanoma case law concerning duties

linkers

Communication to the public (+)

• “Communication” (+)

• No mere provision of physical facilities

• Rather deliberate “intervention” by providing media player with pre-

installed links

• “New public” (+), Mr. Wullems considered a “for profit linker”, and

he knew that links went to illegal content

CJEU case law Hyperlinking


• Understanding the CJEU concept for linking:

• Linking is a communication (CJEU Svensson), so the crucial

issue is if linking is to a “public”

• “public”: Concept of “new public” further refined

• This concept consequently applied, linking to content published

without the consent of the right owner should always be to the

“public” (German BGH Bestwater II - 2015)

• But CJEU GS Media/Sanoma and Filmspeler: Creation of liability

rules on the EU level

(deliberate intervention; “knew or ought to have known”)

Beyond CJEU GS Media ./. Sanoma:

Duties of linkers


• CJEU - GS Media/Sanoma and Filmspeler

• For profit linkers: Duty to check to ensure that the work is not

illegally published; rebuttable presumption that linker ought to

have known

• Duties of care in case of for profit linker

• Model: Prevention duties known from Art. 8 (3) Copyright

Directive 2001/29 and Art. 11 3rd sentence Enforcement

Directive

• Linkers are comparable to intermediaries

• Flexible system with weighing of interests

• Hosting providers CJEU C-324-09 – L’Oréal/Ebay;

access providers CJEU C-314/12 – UPC TeleKabel („kino.to“)


Duties of linkers




not illegally published; rebuttable presumption that linker ought

to have known


• „Traffic light“ model ?


Duties of linkers





to have known



• Red: link to clearly illegal content = link illegal


Duties of linkers





to have known




• Yellow: link to dangerous business model = duty to check before


Duties of linkers





to have known




• Yellow: link to dangerous business model = duty to check before

• Green: link to legal business model = duty after notification


Duties of search engines


• CJEU - GS Media/Sanoma



to have known

• Search engines are for profit linkers

• Socially adequate duties to check; danger resulting from source

(crawled) website

• „Traffic light“ model for search engines?







to have known



(crawled) website


• Red: rogue business model, de-listing of website







to have known



(crawled) website



• Yellow: dangerous business model, takedown link and same kind of

link after notification







to have known



(crawled) website



• Yellow: dangerous business model, takedown link and same kind of

link after notification

• Green: legal business model, takedown link after notification

CJEU case law Hyperlinking:

Creation of a general EU liability concept?


• The CJEU created liability rules

• Deliberate “intervention” = communication

• Duty of care: “knew or ought to have known” = communication to

the public

• Harmonization by CJEU, because EU law lacks general harmonization for primary and secondary liability, was subject to national concepts

• Exception: Art. 8 (3) Copyright Directive and Art. 11 3rd sentence

Enforcement Directive




• Secondary liability: Deliberate intervention and breach of duty

of care of intermediary may lead to liability as (secondary)

infringer?

• Example hosting providers of illegal content, do they

communicate to the public?

• “Communication”: Deliberate intervention

• providing services despite notification (?) or

• active role (?)

• “New public”: Knew or ought to have known that illegal

• Liability privilege Art. 14 E-Commerce-Directive:

Does not apply, if actual knowledge or active role

• (Compare with Art. 13 Draft DSM Directive and Recital 38)




• Example CJEU harmonization secondary liability

• CJEU C- 610/15 “The Pirate Bay”, judgement June 14, 2017

• WAS under Swedish (criminal) law: Aidership




• Example CJEU harmonization secondary liability

• CJEU C- 610/15 “The Pirate Bay”, judgement June 14, 2017

• WAS under Swedish (criminal) law: Aidership

• Would be under EU liability rules by CJEU: Direct infringement

Summary


• Linking is relevant under copyright, if it is a communication to

the public.

• CJEU Svensson and GSMedia/Sanoma say the following:

Summary



the public.


• Linking is a communication.

Summary



the public.



• It is „public“ in case a new public is reached.

Summary



the public.




• Linking to a work which is legally made available on the internet

(also elsewhere) without access restriction is not to a new public.

Summary



the public.




• Linking to a work which is legally made available on the internet

(also elsewhere) without access restriction is not to a new public.

• In case access restrictions are circumvented, linking is a

communication to the public.

Summary


• Linking to a work, which is (nowhere) legally on the internet is

public, if the linker knew or ought to have known.

Summary




• For profit linkers face a rebuttable presumption that the linking

was public.

Summary





was public.

• They have a duty of care,

• which should be interpreted using the model of intermediary duties

(Art. 8 (3) Copyright Directive)

• And should be evaluated in a flexible system, e.g. traffic light model

Summary





was public.

• They have a duty of care,

• which should be interpreted using the model of intermediary duties

(Art. 8 (3) Copyright Directive)

• And should be evaluated in a flexible system, e.g. traffic light model

• Not for profit linkers only face duties after notification or in case

the illegality was obvious.

Summary


• The CJEU linking case law may be the first step towards an EU

concept for secondary liability. Such a liability would require a

deliberate intervention and a breach of a duty of care (German:

“Verkehrssicherungspflicht”). The duty would be determined in a

flexible system with weighing of interests.

Summary







• “Hyperlinking as a problem:

Does the CJEU case law work out?”

Summary








Does the CJEU case law work out?”


Does the CJEU case law work out a new EU concept for

secondary liability?”

Prof. Dr. Jan Bernd Nordemann

[email protected]

Boehmert & Boehmert

Kurfürstendamm 185

D-10707 Berlin

Germany

T +49- 30- 236 076 7- 71

F +49- 30- 236 076 7- 21

Thank you for your attention.

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Hyperlinking as a problem: Does the CJEU case law work out? · GRUR-RR 2017, 89 – Kein Vollgas...

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