REVEALED! CLICK HERE! EVALUATIVE ASSESSMENT OF THE NEW PUBLIC THEORY IN THE CONTEXT OF HYPERLINKING ON THE INTERNET

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REVEALED! CLICK HERE!

EVALUATIVE ASSESSMENT OF THE NEW PUBLIC THEORY IN THE

CONTEXT OF HYPERLINKING ON THE INTERNET

University of Amsterdam Master Thesis Anu Hilary Härmä anu.harma@hotmail.com 12347337 European private law Supervisor: Laura Burgers 24.7.2020

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Abstract

Copyright, right holders’ rights, Internet and hyperlinks. It is a battle and it is a question that does not have clear answers. On the one hand, we want to flourishing internal market1_{with new} technologies, and thus in turn protect the right holders’ rights2_{- while still protecting the} end-user’s rights.3_{However, these two sides should not be seen as the opposing each other. Can we} find a solution that enhances both?

Hyperlinks ability to infringe copyright is a debatable issue and thus has made the legal status of hyperlinks controversial.4_{The question boils down to the issue whether hyperlinks should be} subject to the copyright regime.5_{However, the academics’ opinions are polarised in this matter:} some think that hyperlinking does not infringe copyright while the others think that hyperlinking infringes copyright.6_{Moreover, a few academics have observed that views on hyperlinks vary} even in national courts.7

Ever since the Court of Justice of the European Union (hereafter CJEU) developed the “new public “ theory on hyperlinks,8_{the theory has been under heavy academic debate and critique.}9 It has been argued for example by Association litteraire et artistique internationale

(

hereafter

1_{Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonisation of} certain aspects of copyright and related rights in the information society [2001] Official Journal L 167. Recitals 1-9 2_{ibid recital 10}

3_{ibid recital 31}

4_{Evangelia Papadaki ‘Hyperlinking, making available and copyright infringement: lessons from European national} courts’ (2017) 8(1) European Journal of Law and Technology 1, 2

5_{João Pedro Quintais, Copyright In The Age Of Online Access (Wolters Kluwer 2017), 157}

6_{'Report And Opinion On The Making Available And Communication To The Public In The Internet Environment} – Focus On Linking Techniques On The Internet' (ALAI Association litteraire et artistique internationale, 16 September 2013) <https://www.alai.org/en/assets/files/resolutions/making-available-right-report-opinion.pdf> accessed 21 May 2020.

7_{Eleonora Rosati, 'Linking And Copyright: Easier At Last? First National Applications Of The CJEU GS Media}

Judgment' in Tatiana-Helenē Synodinou and others (eds) EU Internet Law in the Digital Era Regulation and enforcement (Springer 2020), 75-76

8_{Case C-306/05 SGAE v Rafael Hoteles SA [2006] 2006 I-11519, paras 40-41}

9_{Mihály J Ficsor ‘Svensson: honest attempt at establishing due balance concerning the use of hyperlinks–spoiled by} the erroneous ‘new public’theory’ (Copyrightseesaw 2014)

< http://www.copyrightseesaw.net/en/papers?page=5 > accessed 24.2.2020;

Stavroula Karapapa ’The Requirement for a "New Public" in EU Copyright Law’ (2017)42(1) European law review 63; P. Bernt Hugenholz Sam C. Van Velze ‘Communication to a new public? Three reasons why EU copyright law can do without a “new public”’ (2016) IIC-International Review of Intellectual Property and Competition Law 797

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ALAI) that: “The theory is in conflict with international treaties and the EU Directives.”10_{It has} been also argued that the “new public “theory is flawed and EU Copyright could do well without it11_.

This thesis examines the case law on hyperlinking by using the normative standard, the high level of protection of intellectual property, and evaluative assessment for evaluating the problems of “new public” theory on hyperlinking. After that the normative standard and evaluative assessment is used for evaluate the possible solutions for the problem of legality of the hyperlinking. This thesis argues that the new public theory undermines the rights of the right holders. The aim of this thesis is to give guidance to the legislative on this yet current topic on hyperlinks.

10_{Mihály J Ficsor ‘Svensson: honest attempt at establishing due balance concerning the use of hyperlinks–spoiled} by the erroneous ‘new public’theory ’ (Copyrightseesaw 2014)

< http://www.copyrightseesaw.net/en/papers?page=5 >24.2.2020; 'Report And Opinion On The Making Available And Communication To The Public In The Internet Environment – Focus On Linking Techniques On The Internet' (ALAI Association litteraire et artistique internationale 2013)

<https://www.alai.org/en/assets/files/resolutions/making-available-right-report-opinion.pdf> accessed 21 May 2020 11_{P. Bernt Hugenholz Sam C. Van Velze ‘Communication to a new public? Three reasons why EU copyright law}

can do without a “new public” ‘(2016) 47 IIC-International Review of Intellectual Property and Competition Law 797

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Chapter 1. INTRODUCTION

1.1. Problem Statement

Hyperlinks are essential tools for the functioning of the Internet: they offer reference tools for programmers, service providers and end-users. In essence, hyperlinks can be described as reference tools of the Internet. They provide references and accesses to other sources on the Web. 18

Hyperlinks’ ability to infringe copyright is a debatable issue and thus has made the legal status of hyperlinks controversial.19_{The question boils down to the issue whether hyperlinks should be} subject to the copyright regime.20_{However, the academics’ opinions are polarised in regard to} this matter: some think hyperlinking does not infringe copyright while the others think that hyperlinking infringes copyright.21_{Moreover, a few academics have observed the views on} hyperlinks vary even in national courts.22

The recent court case 2019 Warner Music UK ltd and Sony Music Entertainment UK Ltd v TuneIn from UK23_{is an example how the current technology gives opportunity to the operators} of the Internet capitalize economic benefit via hyperlinks. For example, in this case the TuneIn was able to economically benefit from content which was already available on the Internet without any kind of technical restrictions.24_{In this case the legal question was whether TuneIn}

18_{João Pedro Quintais, Copyright In The Age Of Online Access (Wolters Kluwer 2017), 156-157, also more detailed} description will be given following chapters

19_{Evangelia Papadaki ‘Hyperlinking, making available and copyright infringement: lessons from European national} courts’ (2017) 8(1) European Journal of Law and Technology 1, 2

20_{João Pedro Quintais, Copyright In The Age Of Online Access (Wolters Kluwer 2017), 157}

21_{'Report And Opinion On The Making Available And Communication To The Public In The Internet} Environment – Focus On Linking Techniques On The Internet' (ALAI Association litteraire et artistique

internationale 2013) <https://www.alai.org/en/assets/files/resolutions/making-available-right-report-opinion.pdf> accessed 21 May 2020.

22_{Eleonora Rosati, 'Linking And Copyright: Easier At Last? First National Applications Of The CJEU GS Media} Judgment' in Tatiana-Helenē Synodinou and others (eds) EU Internet Law in the Digital Era Regulation and enforcement (Springer 2020), 75-76

23_{Warner Music UK ltd and Sony Music Entertainment UK Ltdv TuneIn [2019] EWHC 2923 (EWHC 2923).} Although not an EU Member State anymore gives a useful insight into the topic. Decision was given before the Brexit.

24_{Eleanor Steyn and Jacek Kruza, 'UK Users Can Tunein To Overseas Radio, But Tunein Needs A UK Licence -} Simkins' (Simkins, 2020) <https://www.simkins.com/2020/01/uk-users-can-tunein-to-overseas-radio-but-tunein-needs-a-uk-licence/> accessed 4 July 2020.

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2 was breaching copyright by providing hyperlinks to online streams of radio stations.25_{This is an} interesting case because any exactly similar case has not been brought to the CJEU. What makes this case especially interesting that the outcome could be different in the CJEU compared to UK. Namely, based on the new public theory, when content is freely available and without

restrictions, providing hyperlinks by the user, the act is not against the communication to the public in the InfoSoc Directive.

Even though the new Directive (EU) 2019/790 of the European Parliament and of the Council of 17 April 2019 on copyright and related rights in the Digital Single Market (hereafter Directive on Copyright in the Digital Single Market) has clarified that the content-sharing service providers are liable of their content, uploaded by their users26_{, I will argue that still more is needed and it} has not yet solved the problem of hyperlinking. Thus, this thesis’s focus is to give guidance to the legislative on this yet current topic on hyperlinks.

The Article 3(1) Information Society Directive states that the author of the work has the right authorize or prohibit the communication to the public. The Article 3(1) of Information Society Directive which regulates the communication to the public in interactive environments, states that the author has the right to either authorize or prohibit the communication of the work to the public27_.

In other words, for the communication to the public not to be infringement of copyright, the communication of the work to the public requires consent from the author. However, neither the “act of communication” nor “the public” has been defined in legislation.28

Currently, hyperlinking to content is seen as an act of communication which does not infringe communication to the public unless it is communicated to audience as referred as the “new

public “29_{. The “new public” theory, developed by Court of Justice of European Union (hereafter} the CJEU), states that the there is a violation of author’s exclusive rights when the work is

transmitted to the public which the author did not take into account when they authorized the use 25_{Heinzl Bernhard ‘ Radio stream aggregator TuneIn held to infringe rightholders' copyrights’(2020) 15(2) Journal} of Intellectual Property Law & Practice 84,84

26_{Directive (EU) 2019/790 of the European Parliament and of the Council of 17 April 2019 on copyright and related} rights in the Digital Single Market and amending Directives 96/9/EC and 2001/29/EC 2019[2019] OJ L 130, recital 64

27_{Sam C. van Velze “ Communication to the new Public ?A critical analysis of the CJEU’s New Public Criterion in} European Copyright Law “ (Master thesis University of Amsterdam 2015), 10

28_{João Pedro Quintais, 'Untangling The Hyperlinking Web: In Search Of The Online Right Of Communication To} The Public' (2018) 21 The Journal of World Intellectual Property 385, 388

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3 of their work to the original public.30_{Thus, as the underpinning argument is that all of the users} of the Internet are part of the initial public that the author must have been taken into account. 31 Ever since the CJEU developed the “new public “theory on hyperlinks,32_{the concept has been} under a heavy academic debate and critique.33_{It has been argued for example by ALAI that:} “the theory is in conflict with international treaties and the EU Directives”.34_{It has been also} argued that the “new public “theory is flawed and EU Copyright could do well without it.35

1.2. Scope of the thesis

1.2.1. How hyperlinking works?

There are two ways how hyperlinking works (Figure 1: How hyperlinking works?). The first is internal hyperlinks which link within the website, the another is external hyperlinks that link to another website36_{. Neither of these ways involve copying content from another website’s server} to one’s server.

This thesis focuses to external hyperlinking because there is a confusion on whether the external hyperlinks are copyright infringement as the case law shows37_.

30_{Case C-306/05 SGAE v Rafael Hoteles SA [2006] 2006 I-11519, paras 40-41}

31_{, Case C-466/12 Nils Svensson and others v Retriever Sverige AB [2014] ECLI:EU:C:2014:76, para 26} 32_{Case C-306/05 SGAE v Rafael Hoteles SA [2006] 2006 I-11519, paras 40-41}

33_{Mihály J Ficsor ‘Svensson: honest attempt at establishing due balance concerning the use of hyperlinks–spoiled} by the erroneous ‘new public’theory ’ (Copyrightseesaw 2014)

< http://www.copyrightseesaw.net/en/papers?page=5 >24.2.2020; P. Bernt Hugenholz Sam C. Van Velze

‘Communication to a new public? Three reasons why EU copyright law can do without a “new public” ‘ (2016) 47 IIC-International Review of Intellectual Property and Competition Law 797; Stavroula Karapapa ’The Requirement for a "New Public" in EU Copyright Law’ (2017)42(1) European law review 63

34_{'Report And Opinion On The Making Available And Communication To The Public In The Internet Environment} – Focus On Linking Techniques On The Internet' (ALAI Association litteraire et artistique internationale 2013) <https://www.alai.org/en/assets/files/resolutions/making-available-right-report-opinion.pdf> accessed 21 May 2020; Mihály J Ficsor "Svensson: honest attempt at establishing due balance concerning the use of hyperlinks–spoiled by the erroneous ‘new public’theory" (Copyrightseesaw 2014) <www.copyrightseesaw.net/enaccessed > accessed 24.2.2020

35_{P. Bernt Hugenholz Sam C. Van Velze ‘ Communication to a new public? Three reasons why EU copyright law} can do without a “new public” ‘(2016) IIC-International Review of Intellectual Property and Competition Law 797 36_{Stuart Stein, Law On The Web- A Guide for Students and Practitioners (Pearson Education; 2003), 150}

37_{compare e.g Svensson and GS Media, Case C-466/12 Nils Svensson and others v Retriever Sverige AB [2014]} ECLI:EU:C:2014:76 and Case C-160/15 GS Media v Sanoma Media Netherlands [2016]ECLI:EU:C:2016:644

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4

1.3. Research question and sub-questions

The research question of this thesis is:

Is the new public theory, developed by the CJEU applied to hyperlinks in line with rationale of Article 3(1) of the InfoSoc Directive?

The sub-questions are following:

1. What is the “new public” theory developed by the CJEU in hyperlinks?

2. What are the objectives behind Article 3(1) in InfoSoc Directive with regards with hyperlinks?

3. What are the flaws in “new public” theory developed by the CJEU?

4. What are the possible solutions in regard with hyperlinks and “new public” theory? Although new public theory and hyperlinks has been examined in relation to: the liability of the user,38_{the comparative international analysis}39_{; the question whether the “new public “theory is} in line with Article 3(1), with respect to hyperlinks, is still needed. This analysis helps to give further guidance on evaluating possible solutions to the assessment of the legality of hyperlinks to the legislative. The possible single solutions have been examined and suggested rather 38_{Julia Hörnle, 'Is Linking Communicating?' (2014)}_{30(4) Computer Law & Security Review 439}

39_{Yong Wan, 'Deep Linking Does Not Constitute A “Making Available to The Public”: The Perspective of Beijing} Intellectual Property Court' (2017) 33 Computer Law & Security Review.

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5 extensively.40_{This thesis tries to examine a few of those solutions and compare them to find} whether there is any best single solution.

1.4. Methodology and structure of the thesis

I will use evaluative study methods. The second chapter examines what is the new public theory and the technology underpinnings of hyperlinking. Then I turn to formulating the normative standard in the third chapter. The normative standard, the high level of protection of intellectual property. In the fourth chapter the potential flaws of the new public theory are examined in the light of the normative standard. The aim is to examine those flaws within the light of a landmark case law on hyperlinks. After the flaws have been revealed in the fourth chapter, the potential solutions are studied in the fifth chapter. Finally, concluding remarks are made in chapter six, which ends this thesis.

40_{Orit Fischman Afori, 'Implied License: An Emerging New Standard In Copyright Law' (2008) 25 Santa Clara} Computer & High Tech; Mihály J Ficsor ‘Svensson: honest attempt at establishing due balance concerning the use of hyperlinks–spoiled by the erroneous ‘new public’theory.’ (Copyrightseesaw 2014)

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6

Chapter 2. ONCE IN A BLUE MOON

A law is misinterpreted in case law once in a blue moon. However, this is exactly what happened to Article 3(1) of Information Society Directive (hereafter InfoSoc Directive) – a wrong law was misinterpreted to formulate the new public theory and we now have a puzzling case law on hyperlinking. Like any good story, this one on the new public theory also has twists and turns that can be described as “legal innovations”. However, the theory is undermining the rights of right holders and thus weak points of the theory need to be revealed for seeking justice for the right holders before the hyperlinking becomes the “rule of the Web “– untouchable by the legislation.

The question of this chapter is the following:

(1) What is the new public theory with respect to hyperlinks?

This chapter is divided into three parts: Firstly, I will explain the legal background, the Article 3(1) meaning of which the new public theory tries to explain. Secondly, I will explain what is the new public theory. Thirdly, in this chapter, I also will shed light on the technical aspects of hyperlinking. This way the reader can get a good understanding on the technological underpinnings of the issue.

2.1. Legal Background: Article 3(1) of the InfoSoc Directive

Article 3(1) has two cumulative conditions, the act of communication and communication, which need to be established in order to be considered to be an infringement of communication to the public.41_{Article 3(1) of the InfoSoc Directive states that:}

Article 3(1): 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

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7 The latter of these cumulative conditions of Article 3(1), the communication, happens when the work is transmitted in such a way that the members of the public may have access to it, whether or not they use such an opportunity42_{. This means, when applied to hyperlinks, that the presence} of hyperlinks is enough to establish communication regardless whether the end-user has used the hyperlinks43_.

The former of these cumulative conditions, an act of communication, refers to the active role of a user. Therefore, it is required that the user plays at least an essential role in communicating the work to the public. Consequently, there must be someone who makes the hyperlink available to the public The Court usually weights this against the Recital 27 which states that mere providing of physical facilities is not sufficient for establishing communication. In other words, for

example, providing a computer to the end-user to access the hyperlinks is not sufficient. The Court has interpreted that when the user makes conscious intervention to enable the end-users benefit of protected works such as add-ons, then the communication is established. Thus, even if the recital 27 states that providing facilities is not sufficient, the Court has interpreted that when the user has placed add-ons in a media player in order to ease off circumventing the access restrictions so that the end-users can access the protected content, it is communication to the public.44_{The role of the intervention does not need to be such that without it, the end-user would} be unable to the access to the protected work. Making the access easier is sufficient.45_In

addition, the act of communication also refers to the transmission of the work. Thus, the acts must be sufficient to transmit the work to the members of the public.46

2.2. The concept of “new public “theory in this thesis

The “concept of new public” or “a new public theory” or “new public criterion” is used in academic articles different ways.47_{However, all of them refer to the CJEU’s decisions on}

42_{Case C‑306/05 SGAE v Rafael Hoteles SA [2006] ECR I‑11519, para 43}

43_{Case C-466/12 Nils Svensson and others v Retriever Sverige AB [2014] ECLI:EU:C:2014:76, para 19} 44_{Case C-527/15 Stichting Brein v Jack Frederik Wullems (Filmspeler)[2017] ECLI:EU:C:2017:300}

45_{Case C-527/15 Stichting Brein v Jack Frederik Wullems (Filmspeler)[2017] ECLI:EU:C:2017:300, paras 39-41} 46_{João Pedro Quintais, 'Untangling The Hyperlinking Web: In Search Of The Online Right Of Communication To} The Public' (2018) 21 The Journal of World Intellectual Property 385, 390

47_{compare e.g Sam C. van Velze “ Communication to the new Public ?A critical analysis of the CJEU’s New Public} Criterion in European Copyright Law “ (Master thesis University of Amsterdam 2015); Eleonora Rosati, ‘When does a communication to the public under EU copyright law need to be to a ‘new public’?’ (2020) European Law Review Forthcoming, 3

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8 communication to the public regarding the Article 3(1) of the InfoSoc Directive. For the sake of convenience, I will use the term the “new public theory” throughout the thesis. I will use this term to describe the CJEU’s decisions on hyperlinking regarding communication to the public in Article 3(1) of the InfoSoc Directive.

2.3. New Public Theory - You could be the hero

When the right holder places his work online, he has the right to the control of the medium through which the work is communicated to the public. He has also the right to either authorise the use of the work online or prohibit its communication to the public online. Thus, the right holder has the exclusive rights to the work48_{which is protected under Article 3(1) of the InfoSoc} Directive.

However, the “act of communication” and “public “, the two cumulative conditions of Article 3(1), as stated above, have not been defined in legislation. Therefore, evaluating communication to the public gets more complicated with respect to hyperlinks – and this is where the hero which was needed appeared in the form of the new public theory.

The current situation regarding hyperlinks can affect the author’s moral as well as economic rights. Firstly, the author’s work can be placed to another context without the consent of the author. Secondly, parties can make commercial use of the work without purchasing the license to the work.49_{As an example, the controversiality of deep links shows that not all hyperlinks should} enjoy the same protection in legislation.

Deep links have divided not only academics but also courts worldwide50_{. Deep links are links} that after bypassing the homepage deep links link to the specific content and circumvent

advertising.51_{Thus, they bypass the source of revenue of the homepage. Kiergaard has said “the}

48_{WIPO Copyright Treaty [1996] OJ L89/8 art 8.}

49_{Matthias Leistner, 'Copyright Law On The Internet In Need Of Reform: Hyperlinks, Online Platforms And} Aggregators' (2017) 12(2) Journal of Intellectual Property Law & Practice 136, 137

50_{Sylvia Mercado-Kierkegaard, 'Clearing The Legal Barriers – Danish Court Upholds ‘Deep Linking’ In Home V.}

Ofir' (2006) 22 Computer Law & Security Review 326; Yong Wan, 'Deep Linking Does Not Constitute A “Making Available To The Public”: The Perspective Of Beijing Intellectual Property Court' (2017) 33(6) Computer Law & Security Review 876

51_{Yong Wan, 'Deep Linking Does Not Constitute A “Making Available To The Public”: The Perspective Of} Beijing Intellectual Property Court' (2017) 33(6) Computer Law & Security Review 876, 877

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9 deep linking controversy highlights a fundamental conflict between community and

commerce.”52

The CJEU has developed in case law the “new public “theory, which is one of the criteria to interpret the Article 3(1) and the communication to the public. The new public theory explains how the Article 3(1) should be interpreted with respect to hyperlinks. Hence, the CJEU has interpreted clickable links to protected works as an act of communication to the public in the meaning of the provision.53_{Though, in order to be an infringement of copyright, the hyperlink} must be communicated to the new public54_{–“ a public which was not taken into account by the} authors of the protected works when they authorised their use by the communication to the original public’’.55_{New public can be reached when the hyperlink circumvents technical} restrictions set on the website. New public can also be reached if work of the author is

communicated by different technical means such as via the Internet transmission of a satellite.56

2.4. Hyperlinks and Copyright

Copyright refers to the protection against the reproduction or making copies of a work. As the technology developed it was clear that exclusive right of reproduction was yet needed.

Therefore, it was added to the Berne Convention 1886 that as follows: “Authors of literary and artistic works protected by this Convention shall have the exclusive right of reproduction of these works in any manner of form”. The broad and technology neutral wording was

deliberate.57_{When applying this to hyperlinks, it is important to understand how content can be} added by hyperlinking and what are the types of hyperlinks since hyperlinking does not involve “copying” of the work, as explained in the following section. These aspects explained next in turn determine the scope of this thesis.

52_{Sylvia Mercado-Kierkegaard, 'Clearing The Legal Barriers – Danish Court Upholds ‘Deep Linking’ In Home V.} Ofir' (2006) 22 Computer Law & Security Review 326

53_{Case C-466/12 Nils Svensson and others v Retriever Sverige AB [2014]}_{ECLI:EU:C:2014:76, para 20} 54_{Case C-466/12 Nils Svensson and others v Retriever Sverige AB [2014] ECLI:EU:C:2014:76; Case C‑306/05} SGAE v Rafael Hoteles SA [2006] ECR I‑11519, para 40

55_{ibid para}

56_{Paul Torremans, Research Handbook On Copyright Law (2nd edn, Edward Elgar Publishing 2017), 182} 57_{Jørgen Blomqvist, Primer on International Copyright and Related Rights (Edward Elgar 2014), 106}

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10 2.4.1. Ways to add content to one’s website

There are two typical ways to add content to one’s website. One way is hyperlinking (Figure 2.) other website’s content58_{and the other is by serving the content through their own server.}59 Figure 2 explains how content is delivered to a web browser.

To understand hyperlinking, it is important to bear in mind that the concept of “hyperlinking” refers to the umbrella term of reference tools of the World Wide Web (WWW).

2.4.2. Hyperlink types

Hyperlinks can be divided based on their functioning viz. push and pull links (Figure 3,

Hyperlink Types). Push links are links that “push” the web browser to a different page from the original page. For example, a search engine (e.g. Google) displays the search results as push links, which upon clicking navigate the browser to the target web page. Pull links are links that “pull” the content from other page to the original page and then are embedded in the source 58_{Douglas Comer, The Internet Book - Everything You Need To Know About Computer Networking And How The} Internet Works (5th edn, Taylor & Francis Group 2018),376

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11 website.60_{These links are either “inline” or embedded” links. As in for example, a website} linking an image from another website to show it inline or embedding another website’s page in a frame. Hyperlinks can be either “surface links” which are links to the index page of a website or “deep links” which link to a specific page within a website.61_{So push links require end-user} interaction and pull links do not. End-user is defined by IATE as follows:” ultimate user of a telecommunications service, i.e who does not provide public communications networks or publicly available electronic communications services”62

2.5. Conclusion – A hero or a villain?

Copyright, rightholders’s rights, Internet and hyperlinks. Indeed, it is a battle and it isa question that does not have clear answers. On the other hand, we want to have a flourishing internal market63_{with new technologies, and thus in turn protect the right holders’ rights}64_{- while still}

60_{João Pedro Quintais, Copyright In The Age Of Online Access (Wolters Kluwer 2017), 156} 61_{João Pedro Quintais, Copyright In The Age Of Online Access (Wolters Kluwer 2017), 156}

62_{IATE European Union Terminology <}_{https://iate.europa.eu/search/standard/result/1595087909760/1}_{>, IATE} ID:1483223

63_{Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonisation of} certain aspects of copyright and related rights in the information society [2001] OJ L 167, Recitals 1-9

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12 protecting the end-user’s rights.65_{Is then new public theory a hero who saves the Internet, by} balancing the rights of the right holders and users, - or a villain who undermines the rights of the right holders?

I have brought to the reader’s attention the controversial aspects of hyperlinking. I have also explained the basics of new public theory. New public theory explains how the Article 3(1) of the InfoSoc Directive should be interpreted with respect to hyperlinks. It explains that although the acts of hyperlinking to a protected work might be a copyright infringement, the hyperlink must reach new public, which is public the right holder did not take into account when he communicated the original work. The new public can be reached if it circumvents technical restrictions or is communicated by different technical means to the public.

I have also explained the technical underpinnings of hyperlinking that display the technical background of the hyperlinking.

Next to reveal the true colours of new public theory, the normative standard is formulated in the following chapter 3.

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13

Chapter 3. NORMATIVE STANDARD – Protection of the

right holders’ rights

“[B]ecause someone had to fight for photographers.”66_{– Daniel Morel, photographer}

Four years of a Court battle asking for a fair reward of his pictures. He might have asked in his mind will this case bring justice to him?

His grandmother might have given his first camera as for a birthday gift and a card saying: “You will be successful. “And he might have remembered all of this, and the reason why he started photographing. And the fight against the photo agencies, that used his photos from Twitter without his permission.

In this chapter I formulate the normative standard by analysing the recitals of the InfoSoc Directive which promote the right holders’ rights. Thus, I argue that the main objective of the InfoSoc Directive is to protect the right holders’ right.

In the previous chapters, I have given a few examples on the problematic aspects of

hyperlinking. Consequently, the technology behind hyperlinking makes possible new forms of exploitation which make easier the undermining the right holders’ rights. Therefore, the normative standard here defined is such that it will show why the new public theory is

problematic (Chapter 4) and how the problems can be solved (Chapter 5). Thus, for the sake of clarity of the analysis, I define these relevant recitals that promote the right holders’ rights in the InfoSoc Directive as a one single normative criterion: high level of protection of intellectual property (of the right holders’). More precisely, this normative criterion is understood in this thesis as protecting the economic creative interest of the authors. The protection the economic creative interest of the authors has been defined as especially protecting the economic interest of the rights holders since the moral rights are outside the scope of the InfoSoc Directive.67

This Chapter is divided into two parts: first, I analyse the recitals 4 and 9 since these the Court has acknowledged several times being so important that Article 3(1) InfoSoc Directive should be

66_{James Estrin, 'Haitian Photographer Wins Major U.S. Copyright Victory' (Lens, 2013)}

<https://lens.blogs.nytimes.com/2013/11/23/haitian-photographer-wins-major-u-s-copyright-victory> accessed 21 May 2020.

67_{Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonisation of} certain aspects of copyright and related rights in the information society [2001] Official Journal L 167, recital 19

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14 interpreted broadly to give protection to the Recitals 4 and 9.68_{In the second part, I analyse the} right holders’ right to a fair reward in Recital 10.

3.1. High level of protection – fostering investment in creativity and a fair

reward

In this chapter is presented that the right holders’ rights are the most important objectives in the InfoSoc Directive. It is good to note the InfoSoc Directive also states in Recital 31 that the right holders’ and users’ rights need to be balanced. However, I will argue that the right holders’ rights are the most important with respect to hyperlinking.

One of the important objectives of the InfoSoc Directive is the high level of protection of intellectual property and intellectual creation as indicated in recitals 4 and 9. The recital 4 expresses the importance protecting intellectual property of the right holders. It is said in the recital that the protection of intellectual property leads to: “substantial investment in creativity and innovation—. “

Recital 9 indicates also the importance protecting intellectual property of the right holders. The recital states that: “protection [of copyright and related rights] helps to ensure the maintenance and development of creativity in the interests of authors, performers, producers, consumers, culture, industry—.”

The recitals of the InfoSoc Directive speak about how important is the protection of right

holders’ rights to the society at large. Recital 12 states that the protection of right holders’ rights is also important from the cultural standpoint.

Protection of the fair reward for the right holders is important. It has been stated in Recital 10 that the fair reward for the work is required for the authors for them to continue their work. The fair reward is not only fair in ethical sense but is also important for the thriving the Internal Market. Namely, also the value of the copyright to the competitiveness of European Union is indisputable: 4,7 trillion euros in a year, is the estimated worth of the sectors which make use of the intellectual property rights in the European Union’s Internal Markets.69

68_{Case C-466/12 Nils Svensson and others v Retriever Sverige AB [2014]}_{ECLI:EU:C:2014:76, para 17} 69_{'Enforcing Intellectual Property Rights: EU Action Plan' (EUR-Lex 2015)} <https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=legissum:240603_3> accessed 4 July 2020.

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15

3.2 Conclusions of the chapter

Consequently, it can be concluded that the protection of the right holders’ rights is the most important objective of the InfoSoc Directive: the protection aims ultimately for the thriving society at large – the thriving Internal Market promoting innovations and creativeness. The normative standard formulated in this chapter is therefore the high level of protection of intellectual property. More precisely, this normative criterion is understood in this thesis as protecting the economic creative interest of the authors

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16

Chapter 4. SINGING OFF-KEY: The flaws of the new

public theory

This chapter answers one question:

(1) What are the potential flaws in “new public” theory developed by the CJEU?

This chapter examines the new public theory’s reasoning. It examines the judgements in regards with hyperlinks by comparing the normative standard, defined in previous chapter, to the

landmark cases. The main objective examined, defined in Chapter 2, is the protection of the right holders’ rights. The normative standard criterion defined is the high level of protection of

intellectual property (of the right holders’).

The aim of this chapter is to study the flaws and misinterpretation of this theory and to shed light on those aspects which need a better solution in the light of objective, the right holders’ rights of InfoSoc Directive. In this Chapter the cases studied regarding hyperlinks are the Svensson case, the Bestwater case, the GS Media case and the Filmspeler case, consecutively.

4.1. The beginning of the complex story of hyperlinks

4.1.1. SVENSSON

The Nils Svensson and others v Retriever Sverige AB70_{( hereafter the Svensson case) was the} first case in which the Court was asked to assess the role of the hyperlinks. The Court decided, interestingly, that even though hyperlinks are indeed an act of communication and the

communication has been directed to the public, the hyperlinks in this case were not infringement since no new public was reached.71

In this case the Court needed to decide whether a website that provided hyperlinks to content provided by third party was infringement of copyright. Swedish newspaper had published plaintiffs’ news articles online on their website. Defendant’s website offered hyperlinks to Swedish newspaper website’s news article. Defendant’s website’s results were only available to

70_{Case C-466/12 Nils Svensson and others v Retriever Sverige AB [2014]}_{ECLI:EU:C:2014:76}

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17 defendant’s clients that paid for the website’s content. So, the defendant made money with the hyperlinks to the content.72

The Court argued that the clickable links on another website gave the public direct access to the content on the first website, since there was no access restriction on the first website. 73_{Thus, it} gave the public the opportunity to access them, regardless of using that opportunity. Therefore, the CJEU concluded that there was an act of communication.74_{. In this point is good to note that} the CJEU has not defined exactly what is an access restriction. However, it has been argued convincingly by Quintais that access restrictions refer to technical restrictions75_{. Therefore, in} this thesis for the sake of clarity, access restrictions are considered as technical.

The CJEU argued that the work was communicated to the public since the website was targeted to all potential visitors of second website, the defendant’s website.76_{However, the CJEU argued} that the work has to be communicated also to “new public”; the public that was not taken into account in the original communication by the author.77_{Thus, the CJEU argued that clickable} links do not reach new public since the original communication was available without

restrictions thus being available to all potential visitors. The first website was freely available without any restrictions, therefore the CJEU opinioned that “initial communication consisted all potential visitors the site concerned “.78_{In other words, since the first website was freely}

available to all users of the Internet, thus no new public could be reached.

Basically, what the CJEU decided in this case was that: hyperlinks can be infringement of copyright, but if they are freely available on the Internet without any technical restrictions, they are not. So again, in other words, hyperlinking is allowed if no access restrictions are in place. However, where does this case stand with regards the right holders’ rights then?

It can be argued that the decision brings high level protection being in accordance with the normative standard, since the basic rule is pretty simple: if one wants to protect the work from hyperlinking, one should set restrictions to it. However, when evaluated in accordance with the normative standard- intellectual creation and the fair reward, there is an argument against this.

72_{Case C-466/12 Nils Svensson and others v Retriever Sverige AB [2014]}_{ECLI:EU:C:2014:76, para 8} 73_{Case C-466/12 Nils Svensson and others v Retriever Sverige AB [2014] ECLI:EU:C:2014:76, para 18} 74_{Case C-466/12 Nils Svensson and others v Retriever Sverige AB [2014]}_{ECLI:EU:C:2014:76, paras 19-20} 75_{João Pedro Quintais, 'Untangling The Hyperlinking Web: In Search Of The Online Right Of Communication To} The Public' (2018) 21 The Journal of World Intellectual Property 385, 399-400

76_{Case C-466/12 Nils Svensson and others v Retriever Sverige AB [2014]}_{ECLI:EU:C:2014:76, paras 21-23} 77_{ibid para 24}

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18 Indeed, defining right holders’ economic rights with respect to hyperlinking is the core

problem.79_{The questions asked is: when can the right holders claim for justified reward for the} use of their work, accordance with Recital 10 of the InfoSoc Directive, when their works are communicated via hyperlinks? The legal rule set by the Svensson case is that when the right holder has put restrictions to the website where the work is located, then right holders can apply their rights most effectively.80_{However, ALAI has noted that this kind of obligation to set} technical protection to protect their work is against Berne Convention’s rule that the exercise of right holders rights are conditioned.81

When evaluating this to the normative standard, this point is not effective for fostering the creativeness of the right holders. For example, a starting photographer might want to gain reputation and benefit economically from the photos he has taken. It does not make sense that a starting photographer who does not have reputation yet, would put the pictures behind a paywall or put technical restrictions. These would most likely need technical expertise, to ensure that the pictures would not be for example framed in another context without permission.

Thus, while the decision brings protection to the right holders since the rule for hyperlinking is basically simple: the act of hyperlinking is against the Article 3(1) of the InfoSoc Directive, if the hyperlink circumvents technical restrictions. If the work of the author is freely available without restrictions, it is free for hyperlinking. However, in my opinion, the rule derived from the Svensson case does not make sense for the right holders in practical matters. Right holders who either want to gain reputation without their work being used in another context or just

plainly if they do not have the means to set technical restrictions for the protection of their work. 4.1.2. BESTWATER

BestWater International GmbH v Michael Mebes and Stefan Potsch case82_{(hereafter the} Bestwater case) is an important example of hyperlinking where the content can be placed in

79_{Johan Axhamn, 'Hyperlinking: Case C-466/12 Svensson And Others and Its Impact on Swedish Copyright Law'} (2015) 18 Europarättslig tidskrift, 848

80_{Case C-466/12 Nils Svensson and others v Retriever Sverige AB [2014]}_{ECLI:EU:C:2014:76, para 31}

81_{'Report And Opinion On The Making Available And Communication To The Public In The Internet Environment} – Focus On Linking Techniques On The Internet' (ALAI Association litteraire et artistique internationale 2013) <https://www.alai.org/en/assets/files/resolutions/making-available-right-report-opinion.pdf> accessed 21 May 2020 82_{Case C-348/13 BestWater International GmbH v Michael Mebes and Stefan Potsch [2014]}

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19 other context than the original work by using the framing technique. When compared to the Svensson case, this one raises critique from an economical perspective83_.

The CJEU did not make any distinction in the type of the link. They ruled the case by analogy to the Svensson case the same way, as if all hyperlinks would be the same although in this case the type of the hyperlink was a pull-link.

In this case, the producer of water filters, Bestwater had uploaded promotional video on water pollution on their website. The same video was later uploaded to YouTube by someone without the consent of Bestwater. Later, a competitor of Bestwater embedded the video on the

competitor’s website. The question that was referred to the CJEU was whether embedding content of a third-party website on one’s own website constitutes a communication to the public within the meaning of Article 3(1) of the 2001 Copyright Directive (2001/29/EC).84

The Court decided that hyperlinking applying to framing technique to freely available content is not a communication to the public.

One problem raises from the decision. If framing is not seen as communication to the public, this may lead to free riding of the news aggregators. Pihlajarinne for example notes that in worst case scenario, “personal products are generated utilising copyright material. This would mean for example that there would be news service collections that would look like an individual virtual magazine.”85_{Thus, there is a possibility of circumventing the potential advertisements, and not} giving the fair reward of the work done.

83_{Stephan Zimprich ’Bestwater. ECJ forces copyright owners to employ acces restrictions ’[2014] Fieldfisher} <https://www.fieldfisher.com/en/insights/bestwater-ecj-forces-copyright-owners-to-employ-access-restrictions> accessed 3.5.2020 and Andrea Renda and others, 'The Implementation, Application And Effects Of The EU Directive On Copyright In The Information Society' (CEPS 2015)

<https://www.ceps.eu/ceps-publications/implementation-application-and-effects-eu-directive-copyright-information-society/> accessed 8 May 2020, 25

84_{Stephan Zimprich ’Bestwater. ECJ forces copyright owners to employ acces restrictions ’[2014] Fieldfisher} <https://www.fieldfisher.com/en/insights/bestwater-ecj-forces-copyright-owners-to-employ-access-restrictions> accessed 3.5.2020

85_{Taina Pihlajarinne ’Linking and Copyright- solvable by functional-technical concepts?’Taina Pihlajarinne, Juha} Vesala and Olli Honkkila (eds.) Online Distribution Of Content In Th EU (Edwar Elgar Publishing Limited 2019), 28

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20

4.2. Ready for the twists and turns? Knowledge - continuing the saga started

by new public theory

The previous case law so far was dealing with the case scenario in which the initial

communication of the work had been put to the Internet with the consent of the author. However, this leaves the situation open in which the initial communication of the content has been put to the Internet without consent of the author. Therefore, the CJEU came up with a new additional criterion: knowledge on the content’s legality, in other words, did the author authorise the initial communication to the Internet. The hyperlink is infringing copyright if the person posting the link had knowledge the content being unauthorized. For this matter, the CJEU analyses whether posting the link was done for pursuing profit.

4.2.1. GS MEDIA – where things take an unexpected turn!

In the case GS Media v Sanoma Media Netherlands86 _{(hereafter the GS Media case): Playboy’s} pictures, naked pictures of a woman, were leaked to a website before the pictures’ official publication date. On the GeenStijl’s website, owned by GS Media, there was an article referred to a website via hyperlink where the leaked nude pictures were.87

The prejudicial question that was put out to the CJEU was whether hyperlinking to content freely available on the Internet that had been put to the Internet without the consent of the right holder, constitutes communication to the public in the meaning of article 3(1).88_{In addition, the}

Supreme Court of Netherlands asked whether the hyperlinker’s knowledge on the illegal content was decisive.89

The CJEU began its analysis on stating that the protection of right holders’ interests is important in accordance with Recitals 9 and 10. However, the CJEU wanted to strike a fair balance

between right holders’ and users in line with Recitals 3 and 31. Thus, the CJEU emphasized users’ rights by arguing that their rights should be protected in particular: “[T]heir freedom of expression and of information, safeguarded by Article 11 of the Charter, and of the general interest.”90_{Then the CJEU continued advocating the role of Article 11 and hyperlinks stating} that: “[H]yperlinks contribute to its sound operation as well as to the exchange of opinions and 86_{Case C‑160/15 GS Media v Sanoma Media Netherlands [2016]}_{ECLI:EU:C:2016:644}

87_{Case C‑160/15 GS Media v Sanoma Media Netherlands [2016]}_{ECLI:EU:C:2016:644, paras 6-10} 88_{ibid para 25}

89_{ibid para 24}

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21 information in that network characterised by the availability of immense amounts of

information.”91 _{Furthermore, the CJEU added that it would be difficult for the users to ascertain} the legality of the content which they are linking.92

However, the CJEU had a dilemma: what happens when the initial communication has not been authorised? The CJEU had decided in previous cases that the when the initial communication has been authorised, and communicated with same technical means, then no new public is reached. However, the CJEU argues in the case of GS Media that these decisions that these decisions do not mean that this situation, when the content is freely available on the Internet but without the consent of the author, should be excluded.93_{Indeed, this means quite the opposite as} the Court argues: “Rather, those decisions confirm the importance of such consent under that provision, as the latter specifically provides that every act of communication of a work to the public is to be authorised by the copyright holder.”94

On this basis the CJEU comes up with the knowledge criterion. They argue that when the user does not know or cannot reasonably know that the content has been put without the right holders’ consent, then this does not account as communication to the public.95_{However, when} the user acknowledges the right holder’s dissent for example by notification, the hyperlink constitutes as communication to the public. This is because the user, hyperlinker is assumed to: “ intervene in full knowledge of the consequences of his conduct in order to give customers access to a work illegally posted on the internet .“ 96_{Knowledge is also assumed when the hyperlink is} posted out for profit.97_{Thus, the decision underlines that the when party is acting for profit, the} profiting party has to prove that the party in question did not know that the content was put illegally to online.

The CJEU decided that since it was undisputed the GeenStjil posted those hyperlinks for profit, and was aware the Sanoma had not authorising the initial communication to the Internet, the GeenStjil was then engaged with full knowledge in the publication of those pictures.

91_{Case C‑160/15 GS Media v Sanoma Media Netherlands [2016]}_{ECLI:EU:C:2016:644, para 45} 92_{Case C‑160/15 GS Media v Sanoma Media Netherlands [2016]}_{ECLI:EU:C:2016:644, para 46} 93_{Case C‑160/15 GS Media v Sanoma Media Netherlands [2016]}_{ECLI:EU:C:2016:644, para 43} 94_{Case C-160/15 GS Media v Sanoma Media Netherlands [2016]}_{ECLI:EU:C:2016:644 , para 43} 95_{ibid paras 47- 48}

96_{ibid para 48} 97_{ibid para 51}

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22 Thus, the rule drawn from this case for the protection of the right holders is that user must check the legality of the content if hyperlinking to the content for profit. If the user hyperlinked for profit, it is assumed that he/she knew about the status of the website.

However, Court cases from Member States show that further clarification is still needed for this rule. Regional Court of Hamburg ruled that even though hyperlinking had been created of unauthorised content and for profit, the act was not against the communication to the public. In this case, the legal question raised from the liability of a product search engine. The plaintiff claimed that since one of the results showed by the search engine was unauthorised, it was in breach of communication to the public. The Court decided that although the new public was met, the defendant could not reasonably have had knowledge of the unlawfulness of the content since there were so many hyperlinks.98

Consequently, what can be distinguished from the case, when compared to GS Media, is that the knowledge criterion works only for a limited case. Consequently, only in cases in which the user (human) has clearly hyperlinked only small number of a small number of contents. Under these circumstances, it can be established that the user reasonably to have had checked those

hyperlinks.99_{However, it seems to me that when the number of hyperlinks increases, the} possibility to check those links decreases and the possibility to enforce right holders’ rights decreases as well. Where does this leave the right holders’ rights then? In my opinion, it can be drawn from this that the knowledge criterion is at odds with normative standard, the high level of protection as bringing legal certainty. The situation where the right holder cannot be sure that his rights are enforced even though the work would have been placed on the Internet without

permission of the right holder, and the decision would vary based on the number of the

hyperlinks, it does not serve the high level of protection of the intellectual property for the right holders’.

98_{Eleonora Rosati, 'Linking And Copyright: Easier At Last? First National Applications Of The CJEU GS Media} Judgment' [2020] in Tatiana-Helenē Synodinou and others (eds) EU Internet Law in the Digital Era Regulation and enforcement (Springer 2020), 75-76

99_{Eleonora Rosati, 'Linking And Copyright: Easier At Last? First National Applications Of The CJEU GS Media} Judgment' in Tatiana-Helenē Synodinou and others (eds) EU Internet Law in the Digital Era Regulation and enforcement (Springer 2020), 74-75

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23 4.2.2. FILMSPELER - Another twist in the saga!

In this case Stichting Brein v Jack Frederik Wullems ( hereafter the Filmspeler case) the defendant had sold a multimedia player that had add-ons which contained hyperlinks to third party websites that made the content accessible without the consent of the right holders. More precisely, those add-ons containing hyperlinks, made illegal streaming easier. In this case the legal question was whether the communication to the public covers case in which multimedia player has hyperlinks to freely available content to the public100_{. In other words, the Court had to} answer the question whether a device entailing hyperlinks that made illegal streaming easier was covered by Article 3(1)? The CJEU decided that the Article 3(1) covers this kind situation.101 The CJEU began its analysis stating that the right holders should be protected in accordance with Recitals 9 and 10 of the InfoSoc Directive. Thus, the communication to the public must be interpreted broadly in accordance with Recital 23.102

The CJEU emphasized the role of the user. Then they argued that the user intervenes in full knowledge to make the access to the protected work.103_{The CJEU noted that without this, the} end-users would not necessarily be able to have access to the protected content.104_{The case is} different from the Svensson case, since in this case, there was a physical device which made the access to the protected content easier. Thus, the decisive factor in this case was whether the user goes beyond just providing a mere physical facility to access the work.105

The decision may clearly have wide implications regardless of its narrow factual background. The broad interpretation of communication to the public has widened the net of liability but at the same time also sharpened the rights of the right holders in the Directive and thus being in line with the objectives of the InfoSoc Directive106_{. However, the case has also gotten criticism of} widening the interpretation of the communication to the public. It has been argued that the

multi-100_{Case C-527/15 Stichting Brein v Jack Frederik Wullems( Filmspeler) ECLI:EU:C:2017:300, para 23} 101_{C-527/15 Stichting Brein v Jack Frederik Wullems( Filmspeler) ECLI:EU:C:2017:300, paras 39-42} 102_{Case C-527/15 Stichting Brein v Jack Frederik Wullems( Filmspeler) ECLI:EU:C:2017:300, para 27} 103_{Case C-527/15 Stichting Brein v Jack Frederik Wullems( Filmspeler) ECLI:EU:C:2017:300, para 41} 104_{Case C-527/15 Stichting Brein v Jack Frederik Wullems( Filmspeler) ECLI:EU:C:2017:300, para 23} paras 30-31, 50-51

105_{C-527/15 Stichting Brein v Jack Frederik Wullems( Filmspeler) ECLI:EU:C:2017:300, paras 39-42; Mark} Owen, Maarten Rijks and Adam Rendle, 'Filmspeler And The Expansion Of Communication To The Public' (Scl.org, 2017) <https://www.scl.org/articles/3906-filmspeler-and-the-expansion-of-communication-to-the-public> accessed 11 May 2020

106_{James Seadon and Miryam Boston, 'CJEU Delivers Landmark Ruling On Communication To The Public In} Filmspeler Case' (Fieldfisher, 4.5.2017) <https://www.fieldfisher.com/en/services/intellectual-property/intellectual-property-blog/cjeu-delivers-landmark-ruling-on-communication-to-the-public-in-filmspeler-case> accessed 12 May 2020.

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24 factor test of individual criteria of communication to the public which are assessed more or less liberally, gives away the legal certainty107_{. However, analysis of this particular aspect is out of} the scope of this thesis.

4.3. Conclusions of the chapter

As a conclusion of the above, although the solution in the Svensson case gave a simple rule for the legality of hyperlinking, its practical implications are against the normative standard. I

pointed out that starting entrepreneurs do not necessarily have the means to set restrictions on the website to protect their work. Hence, it is at odds with the normative standard’s promotion of right holders’ creativeness and the fair reward of the work, if enjoying the protection is based on applying restrictions to the work.

When interpreting the Bestwater solution, where framing is not seen as infringement, it can lead situation where at least in theory, news aggregator can benefit using content embedding for creating a newspaper online. This would circumvent the advertisement and possible could

jeopardize getting the fair reward for the right holder, thus being against the normative standard. A national case examined in this chapter revealed that clarification is still needed to the question under what circumstances the user is expected to have had checked the legality of the hyperlinks. It seems that the knowledge criterion can be fully applied only on situations when there are a small number of hyperlinks and that the claimant would be expected to check the legality of a hyperlink. This kind of thinking would be against the normative standard, high level of protection of intellectual property.

Although it can be argued that the Filmspeler case brings high level protection of intellectual property to the right holders, it has been argued that the multifactor test that weighing different aspects, has broadened the Article 3(1) too much.108_{This again would possibly give away the} legal certainty. However, this particular aspect is out of the scope of the thesis.

107_{Bernd Jütte, 'A Link Too Far: CJEU Rules That Sale Equals Communication And Streaming From Unlawful} Sources Is Illegal (C-527/15, Filmspeler)' (European Law Blog, 2017) <https://europeanlawblog.eu/2017/05/24/a- link-too-far-cjeu-rules-that-sale-equals-communication-and-streaming-from-unlawful-sources-is-illegal-c-52715-filmspeler/> accessed 4 July 2020.

108_{Bernd Jütte, 'A Link Too Far: CJEU Rules That Sale Equals Communication And Streaming From Unlawful} Sources Is Illegal (C-527/15, Filmspeler)' (European Law Blog, 2017) <https://europeanlawblog.eu/2017/05/24/a- link-too-far-cjeu-rules-that-sale-equals-communication-and-streaming-from-unlawful-sources-is-illegal-c-52715-filmspeler/> accessed 4 July 2020

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25 The legislative is needed because the case law has brought growing elements to the analysis, and it is in my opinion unclear how these different elements are weighed against each other.

In conclusion, the problems identified in this chapter are as follows: the possibility to circumvent advertisement by hyperlinking, the problematic requirement to set technical restrictions on a website, and lack of clarity how the elements with respect to hyperlinks are weighed against each other.

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26

Chapter 5. EVALUATING THE SOLUTIONS

5.1. Solutions

In this chapter, I present now three different approaches. The aim of this chapter is evaluate these approaches’ solutions to hyperlinking, copyright and communication to the public.

This Chapter is divided into two parts. First, I introduce the current solutions: a functional-technical approach suggested by Pihlajarinne, and a fairness-based approach by Ohly. I am also discussing implied license as a solution. Even though not a current one it has been widely

discussed in the academic literature. 109_{In the second part of this chapter, I compare the solutions} to the problems established in previous chapter and normative standard. Furthermore, I evaluate solutions’ practical implications.

5.1.1. Functional -Technical Approach

Pihlajarinne has suggested a functional -technical approach to solve the dilemma between copyright and hyperlinking. She suggests there should be a more flexible approach to the

problem. Thus, as a solution she argues that the legality of hyperlinking should be assessed based on whether the hyperlinking has been done in commercial or non-commercial context. If the hyperlinking has been done in commercial context, it should be asked whether the hyperlinking has been done in a systematic way or just in an occasional way. Other questions to be asked are whether the hyperlinks are search engines or services using linking techniques.110

5.1.2. A Fairness-Based approach to Economic Rights

Ohly suggests a three-layer method to distinguish copyright infringements. This model draws inspiration from competition law and trade-mark law. More precisely this model draws inspiration from Unfair Commercial Practices Directive in which there is a three -step - test

109_{e.g Orit Fischman Afori, 'Implied License: An Emerging New Standard In Copyright Law' (2008) 25 Santa Clara} Computer & High Tech;Christopher M Newman, 'What Exactly Are You Implying: The Elusive Nature of the Implied Copyright License' (2014) 32 Cardozo Arts & Ent LJ 501

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27 which defines practices that are unfair. On the first level of the suggested new model there would be as a black list covering a defined list of acts that infringe the copyright and all of these should affect negatively to the right holders’ markets.111_{On the second level there is again a list}

infringing acts and also the requirement of negative market effects. Thus, the claimant would need to show that the act would likely to have negative market effects. The use for private purposes could also be entailed on this level. One example of an infringing act would be using the work by inline linking.112_{On the third level, any unfair that would not be covered by the} levels 1 and 2 would, fall within the scope of the level 3. The relevant criteria here is that the use of the work has a negative impact on the right holder’s market position or takes an unfair

advantage of the work. To determine the unfairness, following it should be asked: “Does the use conflict with the normal exploitation of the work and does it unreasonably prejudice the

legitimate interests of the right holder?”113 5.1.3. Implied License

The implied license doctrine is a concept commonly known from contract law. The implied license means that the party’s specific conduct is seen as a permission to do something that would otherwise require authorisation. Thus, the concept is used to track the intent either subjective or objective, of the parties. Therefore, the implied license fills gaps to interpret their agreement.114

The basic idea applied to hyperlinks is that the implied license assumes that the right holder being aware of conduct of codes on the Internet and therefore agrees the material to be linked.115 It has been argued that the implied license does not cover communication to the public but instead just gives the right holders the right to change their mind and restrict the hyperlinking. Therefore, in context of hyperlinks it has been argued that the Svensson case is akin to the implied license.116

111_{Ansgar Ohly, 'A Fairness-Based Approach To Economic Rights' [2017] SSRN Electronic Journal,26} <https://ssrn.com/abstract=3481348> accessed 4 July 2020

112_{Ansgar Ohly, 'A Fairness-Based Approach To Economic Rights' [2017] SSRN Electronic Journal,28} <https://ssrn.com/abstract=3481348> accessed 4 July 2020

113_{ibid 28}

114_{Inc. US Legal, 'Implied-License Doctrine Law And Legal Definition | Uslegal, Inc.' (Definitions.uslegal.com,} 2020) <https://definitions.uslegal.com/i/implied-license-doctrine> accessed 3 July 2020.

REVEALED! CLICK HERE! EVALUATIVE ASSESSMENT OF THE NEW PUBLIC THEORY IN THE CONTEXT OF HYPERLINKING ON THE INTERNET