With the rise of technology and digitalisation, there have been continuing expansion to the access to information. However, access to information also raises some significant questions especially in regards to the protection of the copyrights versus the rights of the public. In that context, the idea behind the development of the concept of communication to the public is to balance between the right to access the information and the protection of copyrights. However, the communication to the public has been considered to be one of the controversial concepts, especially within the European Union (EU) legislation, particularly relating to hyperlinking and online (re)transmission, subjected the concept under scrutiny. Some of the main legal issues pertaining to the right to communication to the public are the content and the scope of the concept, as well as how to protect the rights while balancing competing policy objectives, rights and interests. Ultimately, it is an issue relating to communications rights and limitation to these rights.
Therefore, the essay discusses whether the judgment of the Court of Justice of the European Union (CJEU) obscured the controversial concept of the communication to the public and whether it expanded further copyright protection in favour of the right holders at the expense of public interest. The article argues that in the case of the hyperlinking, there is no communication to the public, because the protected works have been available online, and that the hyperlinks are simply references. Furthermore, it is argued that the recent case law should be examined carefully from the perspective of the new policy making as it seems that the issues surrounding the cases go beyond of the issues addressed.
2. The right of communication to the public
WIPO Copyright Treaty (WCT) 1, which deals with the protection of works and the rights of their authors in the digital environment, in its article 8 articulated the right of communication to the public. The right of communication to public is articulated as an exclusive right of authors of literary and artistic works of authorizing
“any communication to the public of their works, by wire or wireless means, including the making available to the public of their works in such a way that members of the public may access these works from a place and at a time individually chose by them.”
The EU Directive 2001/29 2, also known as Information Society Directive (InfoSoc), articulates the communication to the public similarly as WIPO. However, neither WIPO nor InfoSoc define the concept. At the EU level, the CJEU judgments has been elaborating on what constitutes the concept of the communication to the public for the purpose of InfoSoc Directive, and thus actively shaping the concept. The concept includes two cumulative criteria; first one is an act of communication of a work, and the second one is the communication of that work to a public 3. Thus, the constitutive elements of the communication to the public are communication and the public. InfoSoc does not define the concept of communication exhaustively, and the meaning and the scope should be defined in the context in which it occurs and in the context of the protection of the authors 4. Furthermore, the communication refers to any transmission of the protected works, irrespective of the technical means or process used 5. The term public is defined as an indeterminate number of potential recipients 6.
Some of the authors, such as Clarck and Tozzi, argue that the CJEU has not been consistent in its decisions and it has been providing conflicting guidance as to the application of the concept of the communication to public, in addition to creating sui generis groups of cases such as the cases on hyperlinks and retransmission 7. In that regard, it can be concluded that there are not clear guidelines on when the concept of the communication to the public would be applied and what are the principles guiding the application of the concept. Furthermore, the cases such as Reha Training 8 and GS media 9, raise more questions than they provide answers.
2.1. The Right to the communication to public and Hyperlinking
Hyperlinks, or clickable Internet links, could be defined as website building and online search tool that has been crucial for the provision of numerous online services 10. Tim Barners-Lee, the inventor of the World Wide Web, emphasises that
“the intention in the design of the web was that normal links should simply be references, with no implied meaning 11”
Both, national courts and the CJEU have been dealing with the issue whether hyperlinking falls within the scope of copyright protection. In the UK in case of Paramount vs Sky 12, the Court held that the mere provision of the hyperlinks is not enough to constitute the communication to public. On the other hand, the CJEU has been dealing on a numerous occasion with the issue of the communication to the public and hyperlinking. The CJEU decisions in the landmark cases such as Svensson and GS Media relating to the application of the concept of communication to the public in the context of hyperlinks aroused a lot of controversies.
The Svensson case was concerning an issue of copyright on the internet, more specifically whether hyperlinks on the website that redirect users to protected works that have already been made available online constitutes copyright infringement. In the judgment, the CJEU addressed four legal issues. The first issue was an issue whether hyperlinking to protected works constitute a communication to the public. The second one was relating to the issue of the access to protected work in terms of being freely available or not. The third issue is the distinction between hyperlinking and framing, and the last one concerned widening the protection of the protection of the author’s rights under the national laws. The CJEU concluded that the provision of clickable links to protected works is considered as an act of communication. However, when considering the criteria of the public, the CJEU introduced a term “the new public” in the context of hyperlinks, which was defined as a public that was not taken into account by the copyright holders when they authorised the initial communication to the public. The “new public” could be understood to serve as an assessment of the intention in regards to audience targeting, meaning that the infringement of the copyright does not exist in the case when the information is freely available online and not communicated to “new public.” However, the question that remains is whether infringement of the copyrights exists in the case when the protected work is available online, perhaps with the restricted access. In addition, if hyperlinks are simply referencing, one must wonder how it could ever be possible that referencing could constitute a copyrights infringement. When it comes to the protection of the copyright rights of the author, the CJEU concluded that the States should have the same level of protection available to the authors, which ensures that the protection of the authors is not at the expense of the public. Not long after the Svensson case, the CJEU in the BestWater 13 came to the same conclusion. Finally, by applying the individual assessment, the CJEU in Swensson concluded that
” …in order to establish whether the fact of posting, on a website, hyperlinks to protected works, which are freely available on another website without the consent of the copyright holder, constitutes a ‘communication to the public’ …, it is to be determined whether those links are provided without the pursuit of financial gain by a person who did not know or could not reasonably have known the illegal nature of the publication of those works on that other website or whether, on the contrary, those links are provided for such a purpose, a situation in which that knowledge must be presumed.”
The case of GS Media concerned the Dutch blog publishing the link to the unpublished photos, that was contrary to the request of the photos’ publisher. The CJEU was asked to determine on whether such act can be regarded as unlawful. Advocate General Wathelet (AG) gave the opinion that the posting of a hyperlink to a website which published photos without authorisation does not in itself constitute a copyright infringement 14. In this case, the CJECU introduced a new criterion which is the ‘knowledge’ and ‘presumed knowledge’ of the unauthorised status of the protected work which was linked to. In other words, means rea was introduced as a criterion. AG further added the opinion that the motivation of the person that placed the hyperlink, who knew or should have known that the initial communication of it onto other sites was not authorised, is irrelevant, thus the opinion seems to balance conflicting rights. AG considered that an act of communication in a broader sense is that the communication must be available to the public. In his opinion, hyperlink to the photos merely purported the finding of those photos easier and therefore the intervention could not be regarded as indispensable, and hence there was no act of communication. This was further affirmed in the case laws where it was ruled that a hyperlink will only be regarded as an act of communication if the intervention made by the hyper linker was vital and indispensable for the access to the works 15. Intriguingly, the analysis of the case of GS Media in regard to what constitutes an act of communication suggests that the CJEU departed from the concept of communication to the public established in the Swensson case. The CJEU provided no further guidance on how the courts should decide when the links are posted in pursuit of financial gain such as to bring in the rebuttable presumption of knowledge and when the operators consolidate, collate and provide links to unauthorised content online in order to generate advertising revenue. This lack of guidance may result in unequal protection of the rights of the public and the authors.
The author opines that if the CJEU were to follow AG’s reasoning, copyright owners would be prevented in taking action against website operators who post hyperlinks to the freely available content, even if the content is unlicensed. The AG invited the CJEU to depart from the approach applied in Svensson based on the assessment as to what constitutes an act of communication. The CJEU ruling based on this relative matter is indeed controversial and many at the time would have questioned the CJEU’s analysis. Although the same conclusion will likely to be achieved on either side, it is going to be rather interesting to see how the CJEU will reaffirm the concept of the communication to public from the Svensson in due course of later judgments.
2.1.1. Old Public v New Public
Many have argued that the new public criterion, especially in hyperlinking cases, creates an unwanted risk of the communication of the public becoming exhaustive- the free accessibility of the work to any internet user could deem that the criterion of the “new public” have actually never been placed or been a form of a defence 16. This is because once the work is placed freely and made available online, the communication of such work to the public will eliminate the public right as the work has already been hyperlinked, and therefore eliminating any chance to meet the requirement of the “new public” criteria. This interpretation can be argued not to be consistent with the provision set in article 3(3) of the InfoSoc Directive which affirms the right of communication made to the public not to be exhausted by the virtue of a communication of the work. Additionally, the new public concept raises a question of the control of the access to information on the internet. Concretely, the works that have been made assessable on the internet are supported by formalities whereby they are dependent on the access restrictions such as clicking through licensing, subscription or paywalls for instance. Such requirement could create a direct conflict with Article 5(2) of the Berne Convention 17 which stipulates that the enjoyment and exercise of exclusive rights of copyrights shall not be subjected to formalities. Therefore, it could be viewed that the copyright decision made in the respect of new public criteria has actually limited the availability of defences for copyright holders, so it is at their expense. It could be viewed also that it increased the right of the public protection such as if the formalities were put in place they would affect or create a conflict to the enjoyment and use of the exclusive right that are not to be subject to formalities.
2.2. The right to the communication to public and (re)transmission
The Council Directive 93/83/EEC 18, provides the coordination of certain rules concerning with copyright and rights that are applicable to cable retransmission. The right of broadcasting covers the transmission for the public reception of sound, or of images and sounds made by wireless means such as a radio, television, or satellite. For work to be communicated to the public, a signal is conveyed by wire or wireless ways that were captured by the reception which are only those people that possess the relevant equipment that was necessary for decoding the signal such as cable transmission made to the general public.
In accordance with the Berne Convention, authors do have the exclusive right to authorise any public performance, broadcasting or communication of their work made known to the public 19. In recent years, the rights of the author have been debated extensively, particularly in the context of digital technologies. Opinions became diverge as to what kind of right that could be applied to support the activity of the author’s work. Nevertheless, some clarification has been given by art. 8 of the WCT- an exclusive right for the author in making their work available the public which can be accessed from a place and time individually chosen by them.
In SGAE case, a hotel operator distributed TV broadcast to television sets in guest’s bedrooms. The court noted that the mere provision of physical facilities does not as such amount to the communication to the public. The hotel operator intervened, having full knowledge of the consequences of its actions, by giving accessibility on protected works was within the meaning of Article 3(1) of the Copyright Directive. Absent from that intervention, the Court noted, that in principle, the guest would not have enjoyed those broadcasts. The court recognised that the hotel’s communication was for profit because it was “an additional service which influences the hotel’s standing and, therefore, on the price of its room”.
In the case of Società Consortile Fonografici (SCF) v Marco Del Corso 20, the CJEU concluded that by playing music in the establishment of a private dentist practice is not within the meaning of a profit-making nature because the dentist could not have reasonably expected that the rise of patients, clients or an increase in profit was by the making of such broadcasting means. The case affirmed that in dental practice, it is not enough that the communication was simply to ‘capture’ the public by chance but rather the public was targeted by the user and the receptive to that particular communication. In Reha Training, the Court ruled that the operator of a rehabilitation centre which provided the television for patients to watch the programme did constitute a communication to the public. Furthermore, the CJEU held that the nature of the broadcasting was with the intention to create a diversion for patients that constituted additional services which would eventually give Reha a competitive edge in the market of which Reha provides service. Thus, it can be concluded that this case is at the expense of the public.
In the latest case of ITV Broadcasting v TVCatchup 21, concerned with real time streaming services, the UK courts found that TVCatchup infringed the broadcasters’ communication right. However, the UK Court of Appeal and the CJEU affirmed that the s. 73 of the Copyright Design and Patent Act 1988 was indeed neither consistent or compatible with EU law. Similarly, the CJEU confirmed that s. 73 of the Act is not compatible with the InfoSoc Directive. Therefore, the UK government is required to repeal s.73 of the Copyright Design and Patent Act 1988, which means that it will provide a balance between the right of the public and author.
The High Court sought the clarification on the significance of retransmission being funded by advertising as being in the profit-making nature, and on the fact that the TVC was in direct competition with the broadcaster. The CJEU while citing the case of Football Association Premier League, affirmed that it is not irrelevant that the communication within Art 3(1) has to be in the nature of profit-making but according to SGAE, neither was it an essential condition for the existence of communication to the public. It was affirmed then that the profit-making nature does not determine conclusively on whether a retransmission is communication within the provision of Art 3(1) and thus the factor did not influence its ruling.
Therefore, the CJEU affirmed that businesses should take extra precaution together with the knowledge that any transmission for copyright protection of any broadcast, film, tv or music within the commercial premises would require the appropriate licence permission that is not limited to the public, its clients or customers. However, by analysing the decision made in the cases, it could be pointed out that the way the courts had interpreted or defined the word ‘public’ would likely to even include workplaces occupied by employers as well.
The recent judgments of the CJEU are not coherent, and it can be concluded that they reflect the need to re-examine the copyright law at the EU level and adjust it in accordance with the newest developments, which would fairly balance competing public interests and rights, and particularly rights relating to access to information and rights of the authors. However, it does seem that the latest judgments expanded the copyright protection at the expense of the public interests, which could have serious implications on the internet regulation. Furthermore, there is a serious concern in regard to the tendency to restrict access to information through economic means. While the copyright protection on the internet is important, one must wonder if hyperlinking could constitute infringement of the copyrights in the first place, as they are simply references. On that note, it seems highly likely, especially taking into account the increasing number of cases, that hyperlinking is not an issue per se, but rather a representation of unaddressed issues relating to the protection of the author’s rights 22. Finally, based on the analysis of the CJEU case law in regards to the concept of the communication to the public, it can be concluded that the concept is not legally sound and are potentially unjustifiable and indefensible.
1 WIPO Copyright Treaty (WCT), 1996, TRT/WCT/001.
2 Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society 2001 OJ L 167.
3 Case C466/12 Nils Svensson, Sten Sjögren, Madelaine Sahlman, Pia Gadd v Retriever Sverige AB 2014 OJ C 379/31, para. 16.
4 Case C-607/11ITV Broadcasting Ltd and Others v TV Catchup Ltd 2013 ECLI:EU:C:2013:174, para. 20 and 22.
5 Case C?403/08 and C?429/08 Football Association Premier League and Others 2011 ECR I?9083, para. 193
6 Case C-306/05 Sociedad General de Autores y Editores de España (SGAE) v Rafael Hoteles SA 2006 ECLI:EU:C:2006:764, para. 37 and 38, and ITV Broadcasting and Others, para. 32.
7 B. Clark and S. Tozzi, “Communication to the public” under EU copyright law: an increasingly Delphic concept or intentional fragmentation?” 2016 38(12) European Intellectual Property Review, pp. 715-717.
8 Case C-160/15 Reha Training Gesellschaft für Sport- und Unfallrehabilitation mbH v Gesellschaft für musikalische Aufführungs- und mechanische Vervielfältigungsrechte eV (GEMA) (C-117/15)
9 GS Media BV v Sanoma Media Netherlands BV and Others 2016
10 E. Papadaki, “Hyperlinking, making available and copyright infringement: lessons from European national courts” 2017 8(1) European Journal of Law and Technology.
11 T. Berners-Lee, “Commentary on the Web Architecture: Links and Law” 1997
12 Paramount Home Entertainment International Ltd v British Sky Broadcasting Ltd 2013 EWHC 3479 (Ch).
13 Case C-348/13 BestWater International Case 2014.
14 Advocate General’s Opinion in Case C-160/15 GS Media BV v Sanoma Media Netherlands BV and Playboy Enterprises International Inc. and Britt Geertruida Dekker available at
15 Football Association Premier League Ltd and Others v QC Leisure and Others and Karen Murphy v Media Protection Services Ltd.
16 See for example The International Literary and Artistic Association, Opinion proposed to the Executive Committee and adopted at its meeting, 17 SEPTEMBER 2014* on the criterion “New Public”, developed by the Court of Justice of the European Union (CJEU), put in the context of making available and communication to the public, available at < http://www.alai.org/en/assets/files/resolutions/2014-opinion-new-public.pdf> assessed on 21 December 2017
17 Berne convention for the protection of literary and artistic works, of September 9, 1886, completed at Paris on May 4, 1896, revised at Berlin on November 13, 1908, completed at Berne on March 20, 1914, revised at Rome on June 2, 1928, revised at Brussels on June 26, 1948, and revised at Stockholm on July 14, 1967. (1967). Geneva: United International Bureaux for the Protection of Intellectual Property.
18 Council Directive 93/83/EEC of 27 September 1993 on the coordination of certain rules concerning copyright and rights related to copyright applicable to satellite broadcasting and cable retransmission 1993 OJ L 248.
19 Art. 11.
20 Case C-135/10 Società Consortile Fonografici (SCF) v Marco Del Corso 2012 ECLI:EU:C:2012:140.
21 Case C-275/15 ITV Broadcasting Limited and Others v TVCatchup Limited and Others 2017 ECLI:EU:C:2017:144.
22 See for example J. Riordan, The liability of internet intermediaries (First ed.) 2016.