A Year Ago, The European Supreme Court Appears To Have Ruled The Whole Web To Be In The Public Domain, And Nobody Noticed

On February 13, 2014, the European Court of Justice – the Supreme Court of the European Union – appears to have ruled that anything published on the web may be re-published freely by anybody else. The case concerned linking, but the court went beyond linking in its ruling. This case has not really been noticed, nor have its effects been absorbed by the community at large.

It was a little-known ruling about hyperlinking. But beneath the surface lay a bombshell that will have repercussions for how the entire world exercises the copyright monopoly: a Supreme Court ruling that every single item posted on every single webpage without access control is permanently and irrevocably in the public domain, free for anybody else to copy and rebroadcast without restrictions – without restrictability.

The case was Svensson et al v Retriever Sverige AB. It concerned whether a news aggregator is allowed to link to news articles. The court found that linking is allowed, but elaborated quite a bit on why in the process, and that ruling has the net effect that the entire web is now in the public domain, republishable by anybody on web pages of their own.

The background is that the copyright monopoly in the European Union is governed by the European Union Copyright Directive (EUCD), which is the European equivalent of federal law. The EUCD goes well beyond ambiguous and vague concepts like “copying”, and lists exactly which exclusive rights are contained in the fuzzy umbrella concept of the copyright monopoly.

Basically, that umbrella contains two different rights. The copyright monopoly holder has the exclusive right to produce physical copies of their works (article 2), and the same holder has the exclusive right to communicate the work to the public, or authorize or prohibit others do to so (article 3).

Publishing on web pages falls in the latter category, “communicating to the public”. We can read in the EUCD, article 3:

Member States shall provide authors with the exclusive right to authorise or prohibit any communication to the public of their works, by wire or wireless means, including the making available to the public of their works in such a way that members of the public may access them from a place and at a time individually chosen by them.

This paragraph lists exactly what is contained in the exclusive right, and it is key for the ECJ ruling.

The people who wanted to ban linking had argued that hyperlinking was such an act of communication to the public, and the ECJ explains in quite a bit of detail why it is not. Quoting from the full ruling, with my highlights:

24. None the less, according to settled case-law, in order to be covered by the concept of ‘communication to the public’, within the meaning of Article 3(1) of Directive 2001/29, a communication, such as that at issue in the main proceedings, concerning the same works as those covered by the initial communication and made, as in the case of the initial communication, on the Internet, and therefore by the same technical means, must also be directed at a new public, that is to say, at a public that was not taken into account by the copyright holders when they authorised the initial communication to the public (see, by analogy, SGAE, paragraphs 40 and 42; order of 18 March 2010 in Case C‑136/09 Organismos Sillogikis Diacheirisis Dimiourgon Theatrikon kai Optikoakoustikon Ergon, paragraph 38; and ITV Broadcasting and Others, paragraph 39).

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.

26. The public targeted by the initial communication consisted of all potential visitors to the site concerned, since, given that access to the works on that site was not subject to any restrictive measures, all Internet users could therefore have free access to them.

27. In those circumstances, it must be held that, where all the users of another site to whom the works at issue have been communicated by means of a clickable link could access those works directly on the site on which they were initially communicated, without the involvement of the manager of that other site, the users of the site managed by the latter 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.

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.

Do you understand how this changes the copyright monopoly game completely?

The European Court of Justice (ECJ) goes well beyond linking here, and rules in a broader sense on what constitutes an “act of communication to the public”, which is the exclusive right enjoyed by the copyright monopoly holder according to the EUCD. It rules quite specifically what falls inside and outside the scope of that monopoly, in order to apply that ruling to hyperlinking specifically. (Actually, it doesn’t so much rule as it refers to previously settled case law – and this is a crucial nuance, as it would not be legally binding otherwise: see the comments below. Technically, that case law is the binding ruling, not this one.)

The ECJ makes it clear that the copyright monopoly holder, once having granted an audience permission to access the work, that holder has no further right to authorize or prohibit other transmissions of the same work to the same public or audience.

Specifically, the ECJ says that for an exclusive right to exist, the “communication to the public” must concern “communication to a new public”, that is, one not previously granted access.

It therefore follows, as the ECJ writes in its ruling, that once something is published openly on the web, the entire world has been granted access to it, deliberately, by the copyright monopoly holder. Therefore, the ECJ continues in driving down the hammer on this crucial point, there are no further exclusive rights to authorize or withhold. This effectively puts the work in the public domain.

(The text “effectively put in the public domain” is not in the ruling, as that is not a legal concept. However, that is still the net effect – at least as far as the Internet is concerned; you still wouldn’t be allowed to produce physical copies of the work as per article 2 of the EUCD.)

Does this mean that photos, that are published on one website without a paywall (such as a news site), may be freely published on any other website? Yes, that’s exactly what it means. Among many other things. And this is the Supreme Court of the European Union – unappealable and the final say.

Actually, the ruling goes even further and says that you may also embed content from another web page into your own, without that being a “communication to the public” (and therefore subject to copyright monopoly controls), as long as that content was freely available to the world – i.e. the same audience as you’re presenting to – from the original webpage.

I find it strange that this ruling didn’t get more attention at the time. Fortunately, the ruling is also quite in line with common sense.

So what happens when national state laws go above and beyond this? The European Court of Justice has that case covered too:

Lastly, the Court states that the Member States do not have the right to give wider protection to copyright holders by broadening the concept of ‘communication to the public’. That would have the effect of creating legislative differences and, accordingly, legal uncertainty, when the directive at issue is specifically intended to remedy those problems.

Most interesting. This case had been assumed to be about linking and linking only. It goes way beyond linking.

So let’s hear it from all other paralegals in the community – shoot this down? If this holds, we’re dealing with a new legal landscape, one that was common sense all the time.

Rick Falkvinge

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