CJEU on ”New Public”
Jan Rosen
Professor of Private Law
Stockholm University
SWEDEN
Explosive expansion of CJEU’s Copyright decisions post 2004
C-302/02 (2004), British Horseracing
C-306/05 (2005), Rafael Hotels
C-456/06 (2006), Cassina
C-275/06 (2008), Telefónica
C-52/07 (2008), Kanal 5 Ltd & TV4 AB v STIM
C-240/07 (2008), Sony Music
C-304/07 (2008), Directmedia
C-545/07 (2009), Lakorda
C-5/08 (2009), Infopaq
C-467/08 (2010), Padawan
C-393/09 (2010), Datorprogram
C-462/09 (2011), Thuiskopie
C-403/08 & C-429/08 (2011), Premiere League
C-70/10 ((2011), Scarlet Extended
C-145/10 (2011), Standard Verlag
C-431/09, 432/09 (2012) Airfield
C-283/10 (2012) Circul Globus
C-135/10 (2012) Marcel Del Corso
C-162/10 (2012) Phonogramic Performance
C-128/11 (2012) Oracle
C-607/11 (2013) TVCatchup
C-466/12 (2014) Svensson/Retriever
C-348/13 (2014) Bestwater
C-466/12, Svensson et al. vs Retriever
Sverige AB
The Public
Svensson
et al.
Retriever Sverige AB
www.retrieverinfo.com
Retriever Norge A/S
Database service
GP Göteborgs
Posten
www.gp.se
Articles openly available at
www.retriever.se?
• Retriever’s links pointed directly at copyright
works published by GP on www.gp.se.
• Such material was openly available for three
weeks after first upload on www.gp.se
• For material older than three weeks access only
for those with log in key (subscribers).
• For the relevant period of the case Retriever’s
links were active relative works of Svensson et al.
- material older than three weeks - and thus (no
longer) openly/unrestrictedly available on the
Internet.
ALAI Opinion on linking/communication
2013.09.16 www.alai.org
(i) the act of an individual person, directly or
indirectly,
(ii) with the distinct effect of addressing the
public, irrespective of the tool, instrument or
device that the individual has used to bring
about that effect, and
(iii) elements protected by copyright or material
protected by related rights thus become
available to the public in a way that is
encompassed by the discrete rights granted
under copyright
C-466/12, Svensson
(19) for there to be an ‘act of
communication’, it is sufficient … that a
work is made available to a public in
such a way that the persons forming
that public may access it, irrespective of
whether they avail themselves of that
opportunity
(20) A provision of clickable links to
protected works must be considered to
be ‘making available’ and, therefore, an
‘act of communication’
C-466/12, Svensson & C-348/12, BestWater
conclusions for linking measures
• Communication to the public:
enableing/providing effect of a
measure is enough – no factual
transmission necessary
• Technique neutrality; standard inline hyper links, frames, embedded
measures – insignificant by what
measure if the public is addressed
C-466/12, Svensson; New Public criterion
(26)
The public targeted by the initial
communication consisted of all potential
visitors to the site concerned … all Internet
users could therefore have free access to them.
(27) … all the users of another site to whom
the works at issue have been communicated by
means of a clickable link … must be deemed to
be potential recipients of the initial
communication and, therefore, as being part of
the public taken into account by the copyright
holders when they authorised the initial
communication.
C-466/12, Svensson; New Public criterion
(28)
Therefore, since there is
no new public, the authorisation
of the copyright holders is not
required for a communication to
the public such as that in the
main proceedings.
CJEU limits the scope of the New
Public criterion in two ways:
1) the author has restricted the
access to the website that initially
makes available the work
2) no new public criterion applicable
if the communication is made by
different specific technical means
Restricted Access: limitation to the New Public
criterion = A New Public addressed
Svensson at (31):
(i) a clickable link that makes it possible for users to
circumvent restrictions put in place by the (initial)
site on which the protected work appears
(ii) the work is no longer available to the public on the
site on which it was initially communicated, or
(iii) where it is henceforth available on that site only to
a restricted public while being accessible on
another Internet site without authorisation of the
copyright holders
Restricted access
- pending issues post Svensson & BestWater
• Linking to openly accessibel work
on not authorised site (a pirate
copy), though available
openly/with consent on another
site?
• Effect of an express/declared
restriction to link from an openly
accessible and authorised site?
CJEU limiting the scope of the New Public criterion –
”different technical means”
C-607/11, TVCatchup, at para 26: use of a
specific technical means different from that of
the original communication
C-466/12, Svensson, at (27): users of links to a
work posted on the (open) Internet ”must be
deemed to be potential recipients of the initial
communication” = ”Internet” uses are all of
the same technical means.
New Public criterion – an exhaustion, ”carve
out”, of the communication to the public
right - ALAI Opinion 17.09.2014
ALAI: the application of the "new public" criterion in
the Svensson decision is contrary to:
• Articles 11(1)(ii), 11bis(1), 11ter(1)(ii), 14(1) and
14bis(1) of the Berne Convention
• Article 8 of the WCT
• Articles 2, 10, 14 and 15 of the WPPT
• Article 3 of the EU Information Society Directive
• previous CJEU decisions and interpretation rules
of Articles 31 and 32 of the Vienna Convention on
the Law of Treaties.
CJEU:s non-support of Svensson et al?
(25)
In the circumstances of this
case, it must be observed that making
available the works concerned by
means of a clickable link, such as that
in the main proceedings, does not
lead to the works in question being
communicated to a new public.
What happened to Svensson et al.?
1. Closure of the case at the Swedish
Appeal Court - Settlement between the
parties (secret)
2. Retriever’s links pointed to works
available at source website www.gp.se,
which allowed merely a restricted access
of the nature demonstrated at para (31)
Svensson judgement = New Public!
3. Authors/journalist very happy with the
settlement!
Macro perspective of C-466/12, Svensson
• Has the CJEU a mandate to exhaust/limit basic
exclusive rights of authors without explicit
support from BC, WIPO Treaties & EU
directives?
• What effect for national courts or member
states if CJEU decision conflicts the acquis?
• Is the CJEU’s balancing of interests, its
perception of marketal needs, preserving an
”open” and accessible Internet, rational and
adequate?