Victoria Armstrong discusses recent developments on hyperlinking and the European Commission’s proposals for a digital single market.
September was a fascinating month for copyright lawyers, with a noteworthy decision on hyperlinking from the Court of Justice of the European Union (“CJEU”) and the unveiling of the European Commission copyright package for the digital single market.
On 8 September the CJEU delivered its decision in GS Media, C-160/15 that posting a hyperlink to copyright work that is freely accessible and has been published on another website without the author’s consent does not constitute a communication to the public (as long as the poster does not seek financial gain and acted without knowledge that those works had been published illegally). This decision has taken some content owners by surprise in light of its departure from the previous decisions in Svensson, C‑466/12 and Bestwater, C-348/13. Furthermore, the decision seems to suggest that, in hyperlinking cases at least, primary copyright infringement should be a matter of the Defendant’s state of mind, a concept which is at odds with the current copyright system in England and Wales.
Separately, the European Commission has published its long-awaited proposals for the modernisation of the European copyright system. The proposals, which include a new Directive on copyright in the digital single market and a new Regulation on the rules relating to online transmissions and retransmissions, aim to bring in clearer rules to assist with content availability online.
Amongst the Commission’s proposals is a new negotiation mechanism that will assist with the conclusion of licensing agreements to make audio-visual works available on video-on-demand platforms. In response to the so-called ‘value gap’ between the usage of music on digital services such as YouTube and the revenues ultimately received by rights holders and musicians, the Commission has proposed an obligation for services hosting large amounts of user-uploaded content to create “appropriate technologies” to identify copyrighted content, and to provide rights holders with more information on how that technology works and how effective it is.
In the wake of the publication of the Commission’s proposals, various stakeholders have come forward with their comments. The Publishers Association, for example, has noted that “this is a sensible set of proposals which recognises the role of both publisher and author within the copyright framework”, whilst PRS for Music has stated that “PRS for Music welcomes the Commission’s recognition of the critical ‘transfer of value’ issue and we acknowledge the clear intention to redress the current imbalance of interests between user upload platforms and rights holders…”. Meanwhile, Google says there are “things to like” in the proposal, but has claimed that some aspects “effectively turn the internet into a place where everything uploaded to the web must be cleared by lawyers before it can find an audience”.