IP: Copyrights & Websites: Hyperlinks and Embedding
In my previous article on IP law and Websites, I’ve referred to the guidance of the European Court of Justice (“ECJ”) on the issue of streaming of TV programmes. The ECJ gave a wide interpretation to the provisions of the 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 and the relevant implementing national legislation (the “Directive”) to provide TV broadcasters of live events the right to prohibit retransmission of their programmes, even if these are broadcasted live.
The wide protection afforded to creators of original works is not however without its limits. An interesting case is that of social media websites and applications which allow their users to upload and post content that may be freely accessible to anyone form anywhere in the world.
Would embedding and reproducing content found freely available online also required the consent of the copyright owner?
If the ECJ’s reasoning in ITV v TV Catchup is to be relied on, then reproducing such content would amount to a ‘communication to the public’.
In its judgment in ‘Nils Svensson and Others v Retriever Sverige AB, Case C-466/12’, the ECJ went a step further and clarified that for protection to be afforded under Art. 3 of the Directive, there must be both an act of ‘communication’ and a ‘public’.
The concept of ‘communication to the public’, as per the ECJ, refers to a ‘new public’.
A website providing links to other websites which contain copyright protected works that are freely available online also communicates such works to the public.
However, since these works (content) is already available to public at large, linking to it does not constitute a communication to a new public and does not require to consent of the copyright owner.
This is provided that the content was available online with the copyright holder’s consent and that the right holder does not restrict in any way access to the work for a specific audience.
Guidance issued by the European Union Intellectual Property Office (EUIPO) suggests that embedding to freely available content should also be treated in the same manner.
Comment
On a final note, Directive 2001/29/EC and the ECJ’s case law provided much needed guidance on the application of Copyright law to the new online era. Enforcing the rights of copyright owners remains, as always, a great challenge.
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