News/notes

The KSLR EU Law Blog is 12th in the FeedSpot ranking on EU law blogs

We are pleased to announce that the KSLR EU Law Blog has been selected among the 30 most influential blogs on European matters, ranking 12th! We would like to thank all our readers for their interest and support to this project.

Further information may be found at the following link:  https://blog.feedspot.com/european_law_blogs/.

We look forward to receiving your submissions and hearing your thoughts on any EU-relevant matter.

Giulia & Luigi

 

 

Case note, News/notes

Case Note on C-466/12 Svensson

Justin Koo, PhD Candidate at King’s College London

 

The much anticipated hyperlinking case of Svensson[1] was delivered by the CJEU on the 13th February 2014. Such was the importance of the impending decision, several cases were stayed pending its outcome – C More Entertainment (Case C-279/13),[2] Bestwater (Case C-348/13)[3] and Paramount v B Sky B.[4] Oddly enough, there was no Advocate General’s Opinion which was surprising given the potential implications of the case including the undermining of the Internet as well as the possibility of changes for use and licensing of copyright works online.

The dispute at hand concerned the provision of clickable hyperlinks to the claimant’s newspaper articles. As such the claimants argued that the provision of clickable links by the defendant made the works available to the public and as a result was a communication to the public under Article 3(1) of the Information Society Directive 2001. In response the defendant argued that providing links to works communicated to the public on other websites does not constitute copyright infringement. Furthermore, the act of hyperlinking was not a transmission of the work as it involved mere indication to their clients of websites containing works of interest. In light of this, the Swedish court referred 4 questions to the CJEU (only the first three will be discussed in this article):

(1) If anyone other than the holder of copyright in a certain work supplies a clickable link to the work on his website, does that constitute communication to the public within the meaning of Article 3(1) of Directive [2001/29]?

(2) Is the assessment under question 1 affected if the work to which the link refers is on a website on the Internet which can be accessed by anyone without restrictions or if access is restricted in some way?

(3) When making the assessment under question 1, should any distinction be drawn between a case where the work, after the user has clicked on the link, is shown on another website and one where the work, after the user has clicked on the link, is shown in such a way as to give the impression that it is appearing on the same website?

(4) Is it possible for a Member State to give wider protection to authors’ exclusive right by enabling communication to the public to cover a greater range of acts than provided for in Article 3(1) of Directive 2001/29?’

The CJEU in delivering its judgment addressed the first three questions together interpreting it to mean whether “the provision on a website of clickable links to protected works available on another website constitutes an act of communication to the public…where on that other site the works concerned are freely accessible.” Thus, the question for the Court in simple form was whether the act of hyperlinking already freely available works on the Internet was a communication to the public requiring authorisation. In order to determine this, the Court followed the established rule that the act must be a ‘communication’ and to a ‘public’.[5] Following this, the CJEU held that the provision of clickable links was an act of communication because it made the works available and moreover, it was to a public because the act of communication was made available to an indeterminate and fairly large number of recipients – Internet users.[6]

However, for the defendant’s act of hyperlinking to require the claimant’s authorisation, the communication must have been made to a new public. That is a public not taken into account by the copyright holders when they authorised the initial communication to the public.[7] But as the works being linked to were already freely accessible on the Internet, the Court held that the defendant’s links were not directed at a new public because the initial communication by the claimant would include all of the defendant’s public because the works were freely available to any Internet user. In other words, there was no new public because the initial communication was aimed to all Internet users in virtue of it being freely accessible. Therefore, it was irrelevant for the Court whether the works were being displayed on the defendant’s page so as to give the impression that the information originated from there rather than from an external source.

Despite the Court’s finding that the defendant’s act was not a communication to the public requiring authorisation, the possibility is left open that an act of hyperlinking can amount to an infringement of Article 3(1) where the provision of the link makes accessible a work which is not ordinarily accessible for example through the circumvention of security procedures on the website being linked to. As a result of this the hypothetical question must be asked whether a hyperlink to a work that was uploaded without permission would amount to an infringement of Article 3(1) (for example links to websites streaming unauthorised content such as films or sports). This is problematic not only because the Svensson case does not give us clear guidance about the answer but also because of the general undesirability of the criteria used in the Svensson case.

In the first place, the new public criteria should not be used given that it was expressly rejected in the preparatory works of the Berne Convention. Instead the concept of the ‘organisation other than the original’ was adopted under Article 11bis(1)(ii) and that is the correct criterion to be used. Secondly, from a normative perspective it is highly questionable whether the act of hyperlinking should attract copyright infringement. This is because the act of hyperlinking is essential to the infrastructure of the Internet and moreover, is more about facilitating access to works than causing actual use and infringement. As such the act of hyperlinking should fall outside the scope of the communication to the public right given its technological and informational purpose. However, if this is ignored, a useful alternative may be to treat hyperlinks in terms of secondary liability akin to authorisation in Australian copyright law or contributory liability in American copyright law.

Although many a copyright lawyer breathed a sigh of relief on hearing that hyperlinking does not amount to a communication to the public on the facts of Svensson, the CJEU’s handling of the case leaves a lot to be desired.


[1] Case C-466/12 Svensson and others v Retrierver Sverige AB

[2] Case C-279/13 C More Entertainment AB v Sandberg

[3] Case C-348/13 Best Water International v Mebes and Potsch

[4] Paramount Home Entertainment International Ltd and others v British Sky Broadcasting Ltd and others [2013] EWHC 3479 (Ch)

[5] See Case C-607-11 ITV Broadcasting Ltd v TV Catchup Ltd

[6] See Case C-306/05 SGAE v Rafael Hoteles SL

[7] See SGAE v Rafael Hoteles and Case C-136/09 Organismos Sillogikis Diacheirisis Dimiourgon Theatrikon kai Optikoakoustikon Ergon

News/notes

European Law Institute issues Statement on the Common European Sales Law

Recently a working party of the European Law Institute (the ELI) has published its Statement  on the European Commission’s Proposal for a Common European Sales Law. The report was approved and adopted by the European Law Institute on 7 September 2012.

According to the chairman of the working party,  Sir John Thomas, the working party’s starting point was that it would scrutinise the proposed Common European Sales Law within the policy framework set by the Commission. It has not therefore considered questions of policy, such as whether the Proposal should apply to consumer-to-consumer sales. It has focused its attention on issues of a more technical nature. The working party, and its report, therefore makes a number of significant recommendations aimed at improving the practical utility and attractiveness of the Proposal, rendering it simpler and more coherent and certain.

The report makes a number of recommendations both as to how the text of the Proposal can be improved to increase its practical utility, to maximise the prospect that as an optional law it will be used by consumers and businesses, and as to how it can be implemented successfully.

The ELI Statement can be found at: https://www.europeanlawinstitute.eu/projects/publications/

 

The ELI is an independent non-profit organisation made of leading European judges, lawyers and academics which was established to initiate, conduct and facilitate research, make recommendations and provide practical guidance in the field of European legal development.

 

News/notes

Lets have our EU laws? European Citizens’ Initiative is ready to be used

dr. Agne Limante 

Post-Graduate Diploma candidate in EU Law, King’s College London; PhD in EU law, Vilnius University

 

On 1 April 2012 the Regulation on the European Citizens’ Initiative[i] came into force. It establishes the procedures and conditions required for a citizens’ initiative – the new tool created by the Lisbon Treaty granting EU citizens the right to ask for changes to European law (Article 11 TEU[ii] and Article 24 TFEU[iii])[iv].

Considering that that date chosen for coming into force coincided with April Fool’s day, euractive.com was fast to make a joke announcing that Belgians should submit a Citizens’ Initiative to make ‘frites’ their own, seeking to register them as a traditional specialty protected under EU law. Well, it was quite a fun and user-friendly way to introduce a tool enabling the people to influence the political agenda of the EU for the first time in history.

The European citizens’ initiative grants a right to one million EU citizens from at least seven EU countries[v] to call on the European Commission to propose legislation on matters where the EU has competence to legislate. Proposed initiatives must be registered by the organizing “citizens’ committee” on an online register and Commission has two months to approve them (the registration can be refused if the initiative is manifestly against the fundamental values of the EU or manifestly outside the framework of the Commission’s powers to propose the requested legal act). After such registration, the “citizens’ committee” can start collecting signatures – they have one year after the Commission has confirmed the registration of the proposal to do so. Any EU citizen can sign an initiative (so long as they are old enough to vote in European Parliament elections) and must complete a specific statement of support either online or on paper.

Once the signatures have been collected and verified by the Member States (they have three months to do that), the citizens’ initiative has to be submitted to the Commission. The Commission will have three months to examine it. The organisers will be received at the Commission and will have the opportunity to present their initiative at a public hearing of the European Parliament. The Commission would then adopt a formal response and, in case of a positive decision to put forward a legislative proposal in response to the citizens’ initiative, the standard legislative procedure would start. The Commission proposal would be submitted to the European Parliament and the Council (in some cases only the Council), which will need to adopt it for it to become law.

It is interesting to note that in 2011 the UK government introduced e-petitions, a similar tool for UK citizens – here 100,000 signatures are needed for a question to be addressed in the House of Commons. It seems that such initiatives are becoming a new trend in government – citizens relations and a new way to increase contact between them.

 


[i] Regulation (EU) No. 211/2011 of the European Parliament and of the Council 16 February 2011 on the citizens’ initiative.

[ii] Treaty of the European Union 1993

[iii] Treaty on the Functioning of the European Union 1958

[iv] The European Commission has issued a Guide to the European citizens’ initiative which might be helpful to find additional information on this subject.

[v] The minimum number of signatures that must be collected in each country range from 74,250 in Germany to 4500 in several small Member States. The figure is calculated by multiplying the number of MEPs in that country by a factor of 750.

News/notes

Factsheet of the ECtHR: Case-law concerning the EU

In January 2012 the European Court of Human Rights (‘ECtHR’) published a Factsheet containing a brief review on how the case-law of the ECtHR has been adjusting to cover some of the matters governed by EU law.

The European Union is not – yet[1] – a member of the European Convention for the Protection of Human Rights and Fundamental Freedoms (‘ECHR’)[2] , and accordingly its acts are not subject to the revision of the ECtHR. However, all the States which are members of the European Union are also members of the ECHR.

This has led to a situation where the ECtHR has been able to indirectly control (to a certain extent) the European Union, by controlling the acts of its Member States when transposing or applying EU law.

The factsheet published by the ECtHR contains an interesting summary of the evolution of the case-law of the ECtHR concerning this indirect control of the European Union.

 

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[1] The accession of the EU to the ECHR appears to be imminent. For more information, consider: Limante, A. ‘Draft EU to ECHR Accession Agreement: fitting Cinderella’s shoes for Gulliver’ (European Law Blog of King’s Students Law Review, January 29 2012) <http://kslr.org.uk/blogs/europeanlaw/2012/01/29/50/> accessed 8 March 2012

[2] Convention for the Protection of Human Rights and Fundamental Freedoms, art 32, 33 and 34 [1950] Amended by Protocols Nos. 11 [1998] and 14 [2010]. Available online: <http://www.echr.coe.int/NR/rdonlyres/D5CC24A7-DC13-4318-B457-5C9014916D7A/0/CONVENTION_ENG_WEB.pdf> accessed 08 March 2012