[pp.int.general] Fwd: [The IPKat] Is a clickable link a communication to the public? New case referred to the CJEU

Mon Nov 26 15:02:38 CET 2012

---------- Forwarded message ----------
From: Eleonora Rosati <eleonorarosati at gmail.com>
Date: 2012/11/26
Subject: [The IPKat] Is a clickable link a communication to the public? New
case referred to the CJEU
To: ipkat_readers at googlegroups.com

  <http://1.bp.blogspot.com/-vNb9PFMHpbY/ULNuOje2WZI/AAAAAAAABj8/eFoVwvXBtqE/s1600/angry_wet_cat.jpg>
*There are times when your
communications to the public
may not be the
most agreeable ones*  2012 will be most certainly remembered (although
possibly together with other things) for being the year when the Court of
Justice of the European Union (CJEU) either decided or received quite a few
references concerning the notion of communication to the public, as per
Article 3(1) of Directive 2001/29/EC (the InfoSoc
Directive<http://www.google.it/url?sa=t&rct=j&q=&esrc=s&source=web&cd=1&ved=0CC4QFjAA&url=http%3A%2F%2Feur-lex.europa.eu%2FLexUriServ%2FLexUriServ.do%3Furi%3DOJ%3AL%3A2001%3A167%3A0010%3A0019%3AEN%3APDF&ei=f2ezUOyxOIeD4ATyh4HoCA&usg=AFQjCNHt_rppvD82U85GKf5shBKfRHm-Nw&sig2=cfp_4B_IzCVfqtYkgP3LKA>
).

Following the pretty controversial decision in Joined Cases C-403/08 and
C-429/08 *Murphy<http://curia.europa.eu/juris/document/document.jsf?text=&docid=110361&pageIndex=0&doclang=EN&mode=doc&dir=&occ=first&part=1&cid=162798>
** *in October 2011 (noted
here<http://ipkitten.blogspot.it/2011/10/more-competition-for-europes-football.html>
 and here<http://the1709blog.blogspot.it/2011/10/murphys-law-of-licensing.html>),
on 15 March last the Court delivered two judgments which attempted to
clarify the (still) obscure boundaries of the right in question. ****
 These were Case C-135/10 *Del
Corso*<http://curia.europa.eu/juris/document/document.jsf?text=&docid=120443&pageIndex=0&doclang=EN&mode=lst&dir=&occ=first&part=1&cid=526329>
 (here<http://ipkitten.blogspot.it/2012/03/from-curia-to-caries-music-to-public-in.html>)
and Case C-162/10 *Phonographic Performance
(Ireland)*<http://curia.europa.eu/juris/document/document.jsf?text=&docid=120461&pageIndex=0&doclang=EN&mode=lst&dir=&occ=first&part=1&cid=524262>
* *(here<http://ipkitten.blogspot.it/2012/03/sound-of-music-court-of-justice-rules.html>
 and here<http://the1709blog.blogspot.it/2012/03/hotels-are-public-dentist-waiting-rooms.html>),
in which the Court held that, while communications by hotels to hotel
bedrooms are public, dentist waiting rooms are not.****
 <http://4.bp.blogspot.com/-nrHkN-ZMMF4/ULNpCVm6psI/AAAAAAAABjQ/BVPTLyhtEgw/s1600/cat-licks-toothbrushc.JPG>
*No communication **to the *
*public **in dentist **waiting *
*rooms, **said the CJEU* Now the CJEU has two further cases to decide.
 The first is Case C-607/11 *ITV
Broadcasting<http://curia.europa.eu/juris/document/document.jsf?text=&docid=119526&pageIndex=0&doclang=en&mode=lst&dir=&occ=first&part=1&cid=253423>
*, a reference from the High Court of Justice (Chancery Division) (noted
here<http://ipkitten.blogspot.it/2011/07/tv-catchup-case-goes-to-europe.html>
 and here<http://paidcontent.org/2011/11/22/419-tv-catchup-gets-court-victories-but-europe-will-have-final-say/>)
seeking clarification, among the other things, as to whether rights owners can
prohibit communication to the public of their content via third-party
internet stream if that content has previously been authorised for
communication via analogue means.****
 The second is Case C-466/12
*Svensson*<http://curia.europa.eu/juris/document/document.jsf?text=&docid=130286&pageIndex=0&doclang=en&mode=lst&dir=&occ=first&part=1&cid=255437>,
a reference from the Svea hovrätt (the Svea court of appeal is one of the
six appellate courts in the Swedish legal system) asking the CJEU to
address the following questions:****

   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/EC ...?
   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?
<http://1.bp.blogspot.com/-6swJjwU5LUg/ULNptUX5vQI/AAAAAAAABjY/EitaGPVjpL8/s1600/computer+cat.jpg>
   *But what about clickable links?*
   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/EC ...?

 As the case has just been referred, the UK Intellectual Property Office (
IPO <http://www.ipo.gov.uk/pro-policy/policy-information/ecj/ecj-2012.htm>)
is offering those interested the possibility to comment on it by 3 December
2012. If you wish to do so, you can email your thoughts to
policy at ipo.gsi.gov.uk, stating whether you think that the UK should
intervene and some general points about how the questions should be
answered.****

Merpel thinks that this reference is quite an important one. This is also
in light of the pretty heated debates (*see
*here<http://ipkitten.blogspot.it/2011/07/bently-slams-very-disappointing-ruling.html>
, here<http://the1709blog.blogspot.co.uk/2012/07/browsing-and-linking-should-government.html>,
here
<http://the1709blog.blogspot.it/2012/09/why-meltwater-case-wont-break-internet.html>...)
which
have arisen in the UK following the decision of the Court of Appeal in
Meltwater <http://www.bailii.org/ew/cases/EWCA/Civ/2011/890.html> (the
case is currently pending before the UK Supreme Court, which is expected to
hear it sometime in early 2013).
 Should any Swedish readers know something more about this case
(*eg*factual background) could let the IPKat know?

--
Posted By Eleonora Rosati to The
IPKat<http://ipkitten.blogspot.com/2012/11/is-clickable-link-communication-to.html>on
11/26/2012 01:52:00 PM

-- 
You received this message because you are subscribed to the IPKat's email
readers' group.
For forthcoming events, check the IPKat's sidebar at <a href="
http://www.ipkat.com>www.ipkat.com</a>
To unsubscribe, email the IPKat <a href="mailto:
ipkat_readers+unsubscribe at googlegroups.com">here</a>
-------------- next part --------------
An HTML attachment was scrubbed...
URL: <http://lists.pirateweb.net/pipermail/pp.international.general/attachments/20121126/05e30b32/attachment.html>