June 16, 2015

There has been yet another flurry of copyright-related references to the Court of Justice of the European Union recently. We take a quick look at three of the most interesting references and their potential impact.

Vereiniging Openbare Bibliotheken (C-174/15)

The first of the cases is Case C-174/15 Vereniging van Openbare Bibliotheken v Stichting Leenrecht, a references made by the Court of Appeal of The Hague on 1 April 2015, which relates to (i) the lending right and (ii) whether the question of exhaustion arises in relation to works distributed online.

Libraries in the Netherlands started “lending” e-books  online to their users in January 2014. However, the domestic lending exception does not cover the making available of e-books specifically. Moreover, it also appears to require, as a prerequisite for the applicability of the lending exception, that the distribution right be exhausted in the work. Of course, the latter clearly indicates that the domestic lending exception is not geared towards digital copies, given that the distribution right applies only to physical copies of works, as was most recently confirmed by the CJEU in its Allposters judgment.

The first question referred to the CJEU relates to whether the lending exception in Directive 2006/115/EC covers the lending of e-books. The second question relates to the applicability of the doctrine of exhaustion to digital works. In respect of the question of “digital exhaustion”, it is clear that the referring Court appears uncomfortable with extending the UsedSoft decision beyond the software realm, but was apparently not sufficiently assuaged by the more recent Allpostersjudgment in this respect.

The eventual decision by the CJEU will be closely scrutinised not only by the publishing sector but also the film and music industries given the potential for a problematic limitation on the scope of exclusive rights which are key to the licensing of creative content in the digital environment. Any ruling that extends the doctrine of digital exhaustion beyond software risks diminishing the value of creative content and opening the door to unfair competition from secondary markets that can enable the resale of perfect copies.

Sanoma (C-160/15)

The Dutch courts have been busy in this space. On 7 April 2015, the Supreme Court referred Case C-160/15 GS Media BV v Sanoma Media Netherlands BV and Others, yet another case relating to whether and in which circumstances linking constitutes communication to the public under Article 3 of Directive 2001/29/EC.

Photographs of the Dutch media personality Britt Dekker taken for the purpose of publication in the Dutch edition of Playboy Magazine were leaked and placed online on the file storage service Filefactory. A Dutch gossip website, Geen Stijl, then made a link to the photographs available, enabling all of its users to locate and view the unauthorised photographs.  Sanoma (the publisher of Playboy magazine in the Netherlands), Ms Dekker and the photographer brought a legal action against Geen Stijl. In the course of the domestic proceedings, the Supreme Court referred six questions to the CJEU, considering that the Svensson and BestWater cases provided insufficient guidance on (i) whether there is an act of communication to the public when a work has been published but without the authorisation of the rightholder; and (ii) whether by linking to a work, thereby facilitating the locating of the otherwise hard-to-find work, should be regarded as circumventing restrictions as referred to in the Svensson case and/or as an intervention by which the pictures are communicated to a new public.

The reality of linking on the internet is that there exists a highly developed ecosystem, comprising sophisticated websites linking to unauthorised content on file-storage services. For the vast majority of users, such linking websites are an essential means of locating and accessing infringing copyright content. Taking the CJEU jurisprudence in Svensson and TVCatchup to its logical conclusion, this case should now definitively establish that linking to content placed on the internet without the authorisation of the rightholder constitutes a communication to the public within Article 3 of Directive 2001/29/EC.

Reha Training (C-117/15)

In Case C-117/15  Reha Training Gesellschaft für Sport- und Unfallrehabilitation mbH v Gesellschaft für musikalische Aufführungs- und mechanische Vervielfältigungsrechte (GEMA), the Landgericht Köln, in essence, requests the CJEU to revisit, review and re-state its jurisprudence on communication to the public wholesale.

The facts of the case are, in brief, as follows: television programmes were played by the REHA training centre in rooms designed for social activities, but REHA had not obtained authorisation from GEMA for the use of the musical works included in the programmes. GEMA claimed compensation for unauthorised communication to the public in respect of the musical works.

The first question of the Landgericht Köln asks, in effect, the CJEU to re-state its jurisprudence on communication to the public. The remaining questions are more specific. The second question relates to whether this case concerns communication to the public under Directive 2001/29/EC or under Directive 2006/115/EC on related rights. The third question asks whether there is a communication to the public under either of the directives in this case. One might hazard a guess that the CJEU will run these two questions together. The fourth and final question requests the CJEU to revisit the SCF v Del Corso case specifically.

While the first and fourth questions are bold, it is doubtful whether the CJEU will engage with these questions.  It seems likely that it instead will ask the German court to withdraw the questions, on the basis of them already having been answered.

More information about the references is available on CURIA: http://curia.europa.eu/juris/recherche.jsf?cid=207668