Linked-out : The impact of Svensson on Dutch copyright law

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Linked-Out:

The Impact of Svensson on Dutch Copyright Law

By Harry R.A. Verdegaal

Masters Thesis

August 2014

Student number: 10002784

Adviser: Professor P.B. Hugenholtz

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On the 13th of February, 2014, the European Court of Justice (ECJ) returned a decision in the highly-anticipated and already-infamous Svensson1 case. With this judgment, the court has created an important precedent regarding aspects of the exclusive right of copyright owners to communicate their work to the public. More importantly, the case represents the culmination of a series of prejudicial questions that has challenged the court to take on the significance of exclusive rights in copyright in light of the challenges to those rights posed by electronic, digital and internet technologies. Though many critics regard the decision as, at best, a correct result obtained through poor reasoning,2 it helps to create, in the end, a greater level of security for those who publish works on the internet as well as expanded legal certainty for those websites where hyperlinks to copyrighted content may be found. Finally, the ramifications of this decision will also play a large role in the public consultation on copyright by the European Commission, which closed shortly after the decision.3

In this paper I will attempt to ascertain the effect of the Svensson decision on the scope of authors’ exclusive right of communication and making-available in the Netherlands in regard to

hyperlinks to their copyrighted works created by others. Under a harmonized European copyright law, the interpretation of these rights in each European Union member state will depend on the decisions of the ECJ in court cases like Svensson. This is especially true with respect to the aforementioned rights of communicating a work to the public and making a work available to the public: both were created in anticipation of future developments in communication technology in order give authors a way to exercise their economic rights in the digital age. This anticipatory nature required a great deal of leeway regarding the application of the rights and can be seen in the often vague or open wording of the norms themselves. The ECJ's decisions, then, form a powerful tool with which we can begin to understand the scope of these rights in the EU member states. At the same time, I will also consider what Svensson cannot tell us: what questions remain unanswered by this case?

I will begin, in chapter two, by taking a critical looks at not only the Svensson case but also ECJ decisions dating back to the creation of Copyright Directive4 that have helped shape the central dichotomy of the “right of communication to the public”: namely, the symbiotic terminology of

1 ECJ 13 February 2014, C-466/12 (Svensson e.a. v. Retriever Sverige AB) 2 See, for example, Bently e.a. 2014.

3 See the EU Commission's website dealing with copyright and related rights at

http://ec.europa.eu/internal_market/consultations/2013/copyright-rules/index_en.htm.

4 Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonization of certain aspects of copyright and related rights in the information society.

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“communication” or “making available” and “the public.” This analysis will also include an

examination of the history of the communication right in the Copyright Directive, which often plays a role in the interpretations used by the ECJ in deciding these types of cases. From this analysis of European jurisprudence I aim to distill a variety of interpretations, principles and trends that the ECJ has considered in its judgments and which can play an important role in analysis of new litigation in member states. At the same time, I will also attempt to take account of factors that critical

commentators regard as important in this continuously developing area of copyright law.

In the third chapter, I will examine the relationship between European and Dutch copyright laws in the light of the analysis above and implementation of the Copyright Directive. Copyright has long been considered a fully-harmonized area of European law, but like all European law implemented and administered in principle at the national level small variances can appear. I will make a comparison of the exclusive rights of copyright holders under Dutch law and those rights as promulgated in the directives. The goal of this comparative analysis will be to reveal any idiosyncrasies or vagaries in Dutch copyright law that could affect the application of ECJ jurisprudence to litigation in the court system of the Netherlands.

Finally, in chapter four, I will examine two Dutch court cases involving copyright infringement on the internet related to hyperlinking. The goal will be the application of the analysis from chapters two and three to these conflicts in order to determine the likely outcomes under (harmonized) Dutch copyright law in the wake of Svensson. The first case-study will discuss the GeenStijl court case: political and cultural web-blog GeenStijl was sued for copyright infringement by the local publisher of

Playboy magazine because the blog had posted hyperlinks to stolen, copyrighted photos from an

unreleased edition of the magazine. The second case will be a fictionalized court case (though based on related, actual litigation) between the Dutch collective-rights organizations for musicians and audiovisual artists and the renowned forum website The Pirate Bay (TPB), which allows its users to post a type of hyperlink that facilitates peer-to-peer file-sharing on the internet. Both cases have clear similarities to Svensson, namely that hyperlinks are central to supposed infringement, and will provide an interesting avenue for testing the jurisprudence of the ECJ regarding the scope of the

communication right, specifically with regard to the concept of making available to the public, on the internet.

Chapter 2: Interpretations in ECJ Jurisprudence Regarding the Communication Right

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2.1 The Communication Right in the Copyright Directive

2.1.1 Historical Development of the Communication Right

The third article of the Copyright Directive claims for authors of copyrighted works the exclusive right to communicate the work to the public (the “communication right”). This right is specifically separated in the directive from the more common “right of distribution,” which is

enshrined in article 4 of the directive.5 This division is not found in the Berne Convention (BC) 6 but rather mirrors the more recent WIPO Copyright Treaty (WCT) from 1996,7 which, aside from the distribution right of article 6, also creates a “right of communication to the public” in article 8. This right protects the “immaterial” exploitation of works, as opposed to the reproduction and distribution rights.8 Considering article 1 of the WCT outlines that treaty's relationship to Berne, namely that it exists as a “special agreement” in the sense of article 20 BC, we can understand this communication right as granting a “more extensive right” to authors.9 Thus the rights in the WCT must be seen in the context of their relationship to Berne: namely, they do nothing to derogate the right of communication to the public as explained in Berne, which dealt with public performances,10 but rather creates a new aspect of that right with respect to the digital environment.11 The text of article 8 WCT specifies an authorization right for authors for “any communication to the public, by wire or wireless means” and further that this right includes the [right of] “making available to the public” of the work “in such a way that members of the public may access these works from a place and at a time individually chosen by them.” Article 3 (1) Copyright Directive is basically transposed directly from article 8 WCT.12

This dichotomy within the communication right can be somewhat confusing. Where is the line between “communication to the public” and “making available to the public”? Again, here, it is important to see the relationship between the WCT and the BC: namely that the WCT functions to adapt many Berne rights for the digital age, but also expands application of those rights to all types of

5 Visser 2013, p.42.

6 Depreeuw 2014, p. 246 - 247. The BC rights cover a variety of public performance rights as well as certain broadcasting rights, but does not come close to covering all “immaterial” exploitation rights.

7 Walter & Von Lewinski, p. 975 ff. 8 Depreeuw 2014, p. 245.

9 Ibid, p. 349. See also article 20 BC.

10 Which cover such things as public performances, recitations of literary works, but not display of artistic works. See Walter & Von Lewinski 2010, p. 983.

11 Walter & Von Lewinski 2010, p. 977.

12 Walter & Von Lewinski 2010, p. 980; see also Depreeuw 2014, p. 420 ff.

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works.13 The text of article 8 WCT is very instructive. The “communication right” which can occur by wire or wireless means is the base right, and extends the protections of Berne to situations

characterized by a “distance element.”14 This can include general broadcasting of works, where the public is not situated at the place where the work is created but rather widely dispersed.15 Depreeuw notes that the WCT does not define “communication” in this sense, but that it applies to any making available of a work to a public through means not involving the distribution of copies.16 At the same time, one of the features of the internet is that the concept of “public” in the sense of communication of works can be both a general public (i.e. a group of people experiencing the work at the same time, say a live webcast of an event) but also a consecutive line of individuals who access the same work in an “on-demand” or “interactive” format.17 It is to this type of “point-to-point” communications of works, as opposed to the normal “point-to-multi-point” communication involved in general broadcasting and showing of works, that the right of making available applies. Note that the distance element is present in both senses, but the on-demand nature of the “making available” adapts the right specifically to the internet, an environment characterized by this “point-to-point,” on-demand transmission of works. It is also important to note that the making-available right is not considered a right in and of itself, but rather “a specific instance of the right of communication.”18

The communication right in the Copyright Directive must be read broadly, according to recital 23 of the directive, and thus includes “any” communication to the public which includes “the distance element.”19 This breadth implies that the right as enshrined in the directive stretches farther than that of the WCT and includes therefore public display or playing of copyrighted works such as sound recordings or visual works such as films.20 That the distance element is also present in such public showing of broadcast or recorded works, since the recordings are created in another place, is crucial – not covered by the article 3 is “any activity which does not involve a 'transmission' or 'retransmission' of a work, such as live presentations or performances of a work.”21 Equally important is that both rights are assumed to be “technically neutral,” so that the particular means of transmission or communication are not relevant. What is determinant for the choice between the “making available to the public” and the “communication to the public” designation is the on-demand/interactive feature of the

13 Depreeuw 2014, p. 347,

14 Walter & Von Lewinski 2010, p. 977. 15 Ibid, p. 980.

16 Depreeuw 2014, p. 349.

17 Walter & Von Lewinski 2010, p. 973. 18 Depreeuw 2014, p. 352.

19 ECJ 24 November 2011, C-283/10 (Circul Globus), par. 35 – 41.

20 Walter & Von Lewinski 2010, p. 981-982. See also recital 24 of the directive. 21 Circul Globus decision, par. 40.

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communication of the work: where each individual member of the public can choose the time and place of his or her use of the work, the “making available” right is applicable. It is important to note at this juncture that this right also applies to downloading and downloaded media, not only to directly streamed media.22 The media distributed under the “making available” right is often referred to as “pull,” since the user decides when and where he wants to experience the work. Where the public has no choice in their use of the media (generally referred to as “push” media), the “traditional”

communication right is implied.23

Most importantly, the making-available right has several features which are not immediately obvious, either in the directive or the WCT. Firstly, the right has been fulfilled as soon as the work is placed on the internet.24 This implies that it does not matter if any member of the public ever accesses the work: the mere uploading of the work onto a server or website from which it may be accessed is sufficient. Furthermore, the transmission of works is not covered by the right of making available.25 Depreeuw notes on this point that “the legal protections are shifted from the actual transmission . . . to the phase prior to transmission of work, i.e. the availability for transmission.”26 The ramifications of this are difficult to understand. Walter & Von Lewinski note that this means that the rights of article 3 do not cover the incidental copies of works that are created as a necessity in the transmission of works on the internet.27 However, as we will later see, the idea of literal “transmission” of works may play a role in interpreting the scope of the making-available right.

2.1.2 Structure of Article 3 Copyright Directive

The structure of article 3 Copyright Directive is also interesting. The first paragraph outlines the central rights of communication and making available. Authors of works are given an exclusive right to authorize or prohibit communication of their work to the public by wire or wirelessly as well as an exclusive right of authorizing or prohibiting the making available of such works in a “pull”-media environment. The second paragraph goes farther than the WCT by explicitly expanding the making-available right to holders of neighboring rights such as performers (for recordings of their

performances), phonogram producers (for the recordings they make), for film producers (for originals

22 Walter & Von Lewinski 2010, p. 983. 23 Ibid.

24 Depreeuw 2014, p. 353.

25 Walter & Von Lewinski 2010, p. 983. 26 Depreeuw 2014, p. 353.

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and copies of their films) and for broadcast organizations (whether their broadcasts are transmitted through the ether, by wire, cable or satellite).28 Crucially, this article protects a large chunk of media as distributed online: namely, the retransmission of music works, broadcast television programs and movies, as well as providing some legal footholds for performers.

The final paragraph of article 3 is also quite important. It explicitly states that with regard to either the communication right or the making-available right, there is no possibility of exhaustion29 by the first communication nor any thereafter. It is generally understood that a major reason for this was the conception that on-demand provision of works were a service (along the lines of broadcasting) rather than as a distribution channel for copies of the work. Regarding the physical version of the latter, article 4 of the directive, the distribution right, which allows for exhaustion in regard to legally purchased (physical) originals or copies of works, stands in sharp contrast to article 3. The inclusion of this paragraph reflects justified caution and protection for authors, considering the ease with which works distributed on the internet can be recorded, adapted and retransmitted. However, exhaustion of digital copies has been a controversial issue recently, with the ECJ's decision in the UsedSoft case30 demonstrating that, at least under certain circumstances, “digital exhaustion” is a possibility with regard to digital distribution.31

2.1.3 “The Public”

In considering the origins and ramifications of the communication right as laid down in the WCT and article 3 of the Copyright Directive, the concept of “the public” is naturally one of the most defining and yet least understood concepts. And yet defining, or at least understanding, that notion is, in fact, crucial: the communication right and the making-available right only exist in relationship to the public.32 The latter is literally named in both rights and serves as a defining characteristic of each one, namely the addressee of each prohibited act. No public, it seems, no “making available” or

28 We see here the influence of another WIPO treaty, namely the WIPO Performances and Phonograms Treaty (WPPT), which was also adopted in 1996. See Walter & Von Lewinski 2010, p. 975 ff.

29 In the U.S. this is called the “first-sale” doctrine. Both doctrines basically eliminate the author's right of distribution over the original work or copies thereof, once the (legally brought into circulation with the author's consent) copy or original has been sold or otherwise legally transferred.

30 ECJ 3 July 2012, C-128/11 (UsedSoft). Note that the decision in UsedSoft deals specifically with rights as laid out in the Computer Programs Directive (which covers copyright rights for computer programs) and is not necessarily related to the distribution right as laid out in the Copyright Directive. That the possibility of a “digital exhaustion” exists with regards to works protected by the latter directive is certainly no great leap of the imagination. See

31 See Senftleben 2013 and Grosheide 2013. 32 Depreeuw 2014, p. 445.

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“communication.”33

And yet the concept can be somewhat nebulous. Neither article 3 Copyright Directive nor any of the international instruments such as the WCT furnish a definition of public.34 Walter & Von Lewinski note that this omission can be very disruptive: without proper harmonization of the concept, there exists the possibility that different EU member states may apply the term differently. This could lead to confusion and variances in the application of justice across member states and could ultimately affect the Single Market.35 More importantly, the concept of “public” and the characteristics of that public will play a large role in the decisions regarding infringement of exclusive rights.

Many authors, in determining who or what the public is, begin with what it is not. Mere semantics teaches us that communicating or making something available to “the public” is simply not communicating a work in private.36 This a contrario reasoning explains a great deal of the exemptions to other economic rights such as those for private or at-home use, display or copying of works,37 but does little to flesh out the term. From recitals 9, 10 and 23 of the Copyright Directive, it can be seen that the term itself, in order to establish a high level of protection for rights holders, must be construed broadly.38 Part of the difficulty with modern interpretations of the term “public” is precisely the more diffuse nature of the internet public. At the same time, a consideration of the nature of the

communication and the making-available right indicates that “the public” need not be a single mass of viewers, such as with traditional “push” media like general broadcasts, but can also be a series of quickly successive individual users.39 Naturally this breadth falls comfortably within the guidelines for interpretation as espoused in the recitals. Each member state, it seems, must therefore establish an interpretation of the term in its own legal order.40 In the end, however, it is the responsibility of the ECJ to give a harmonized definition of the concept so that member states do not stray too far and endanger the harmony of the EU's single market.

2.2 ECJ Jurisprudence Regarding Article 3 Copyright Directive

33 Ibid. In fact, many exceptions to exclusive rights, both from statutes as well as jurisprudence, such as the reproduction and distribution rights, are made under the understanding that use, performance or display of works within smaller groups is not equivalent to true communication or distribution of the work in the market. See Walter & Von Lewinski 2010, p. 989. For an example from the Netherlands, see Mom 2010.

34 Depreeuw 2014, p. 445.

36 Depreeuw 2014, p. 446 ff; see also Walter & Von Lewinski 2010, p. 988. 37 See note 22.

38 Walter & Von Lewinski 2010, p. 988. 39 Walter & Von Lewinski 2010, p. 987. 40 Depreeuw 2014, p. 447 – 448.

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2.2.1 SGAE/ Rafael Hoteles

The ECJ case SGAE/Rafael Hoteles41 is often considered the seminal case in regards to the communication and making-available right. At issue was a dispute between the collective rights-management society of Spain, the SGAE, and a hotel chain, the Rafael Hoteles. SGAE had constituted that the hotel chain was liable for rights payments on the basis of two acts: the first being the playing of music and use of televisions playing broadcast television in the public areas of the hotels; the second, that the hotel had within each hotel room a cabled television set by which the guests in that room were able to enjoy broadcast television. Naturally, the case hinged on a few important questions of

interpretation regarding article 3 of the Copyright Directive: were the guests at the hotel to be considered “a public” in the sense of article 3? Were the guests who availed themselves of the

television facilities in their rooms not engaging in (protected) private use of the broadcast television? Was there actual infringement of the exclusive right of authors to communicate their work to the public if the broadcasts that guests of the hotel received were the same as any non-guest in the area could receive on their personal television set?

The first question was a challenge for the court. In a previous decision dealing with the

Satellite Broadcasting Directive,42 that in the Lagardére case,43 the court had been forced to provide an indication of what was meant in that directive with the term “public.” The court defined that concept as, “an indeterminate number of potential television viewers,”44 but was now faced with a bigger problem: the number of guests, or even people, in a hotel is far from “indeterminate.”45 Could this limited number fall under the rubric of “public”? The court answered in the affirmative. Though the number of rooms was limited and thus the number of guests, the court found two factors relevant. Firstly, that the customers of the hotel who were not guests (i.e. those people that found themselves in the public areas of the hotel) were able to make use of the television sets in those areas. Secondly, that both guests and customers of the hotel were made up of groups of people that quickly succeeded each other. The first point helped shore up the “indeterminate” number requirement, while the second helped establish that this was a tale of “a fairly large number of persons” and thus a public.46 Seen as a whole, the nature of the customers also has an influence on the economic repercussions for both hotel 41 ECJ 7 December 2006, C-306/05(SGAE/Rafael Hoteles).

42 Council Directive 98/83/EEC of 27 September 1993 on the coordination of certain rules concerning copyright and rights related to copyright applicable to satellite broadcasting and cable retransmission.

43 ECJ 14 July 2005, C-192/04 (Lagardére/GVI). See also Visser 2013, p. 43. 44 Paragraph 37, SGAE judgment.

45 Visser2013, p. 43.

46 Paragraph 38, SGAE judgment.

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and rights holders: while individual guests and their use of the televisions have almost negligible economic value, the cumulative value of such a situation can be quite large.

That the guests and customers of the hotel were a public is important, but this decision alone does not help establish if the hotel in fact infringed on the artists rights to communicate their work to the public. The real question then arises: has the hotel committed an act of communication to this public? Considering that the hotel had simply provided for an internal infrastructure (reception and the cabling to each room of the received signal) to allow its guests and customers to view what any other individual with a television can view: namely, television broadcasts. Since we can consider these broadcasts an (authorized) communication, it can be difficult to see where the hotel commits an act of communication in the sense of the directive. The ECJ here falls back on the definition of

communication in the Berne Convention and the soft law of WIPO interpretation guides. According to this soft law, when an author authorizes a broadcast he considers only the “direct users:” namely, the owners of receiving equipment and their private circles of family and friends. Consequently, when reception of the broadcast is for larger groups and those people hear or see the broadcast via “loudspeaker or analogous instrument,” it is no longer simple reception “but an independent act through which the broadcast work is communicated to a new public.”47 This communication to a new public (“this public reception”) is an act that requires the exclusive authorization of the rights holder.48

Returning to the case at hand, the ECJ begins to apply the Berne criteria. It notes first, that the guests of a hotel are to be considered “a new public.”49 Furthermore, the hotel “is an organization which intervenes”50 with full knowledge of the consequences, to provide access to protected works, and not simply to improve reception of the broadcasts. The court notes that without this direct

intervention on the part of the hotel, the guests would in principle be unable to receive the broadcasts.51 This is analogous to the use of a loudspeaker or other instrument and thus an act of communication. It follows, according to the court, that for a communication to the public it is sufficient that “the work is made available to the public in such a way that the persons forming the public may access it.”52 These intervention criteria create a difficulty for the ECJ, especially in light of recital 27 of the Copyright Directive. That recital states emphatically that “mere provision of facilities for enabling or making a communication” does not equal a communication. The court solves this by pointing to the combination

47 Paragraph 41. 48 Ibid.

49 Paragraph 42. 50 Ibid (emphasis added). 51 Ibid.

52 Paragraph 43.

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of cabling and televisions in the hotel, noting that if the hotel distributes a signal to its customers in this way “then communication to the public takes place, irrespective of the technique used to transmit the signal.”53

Two additional questions remain. The court notes that there is a distinct financial motivation for the hotel in the provision to customers of televisions: it deems this provision “an additional service with the aim of obtaining some benefit,” namely, an improvement in the hotel's standing and the prices it can charge customers. At the same time the court is careful to distance itself from a “for-profit” criterion, stating that, “the pursuit of profit is not a necessary condition for the existence of a communication to the public.”54 Secondly, the court considers the private aspects of hotel rooms and the ramifications for the communication right. The court notes that from the nature of both the WCT and article 3, namely establishing a framework for on-demand services that are accessible when and where a user desires, it follows that “the public or private nature of the place where the communication takes place is

immaterial.”55 Any other considerations would result in a right that was basically “meaningless,”56 and which would defeat the goal of a high level of protection for authors.

The importance of this case comes primarily in its establishment of a framework by which to judge infringement of the communication and making-available rights. The concepts of (active) intervention as a communication act, the public as a large group of people, a “new” public which can be differentiated from the public considered by the author and the immateriality of public/private or financial considerations will play a large role in later cases. At the same time there exists room for criticism: Visser considers the “intervention” by the hotel and the similarities to the infrastructure in the average apartment complex, where individual apartments are wired to a central television antenna, and questions whether or not the latter also represents an act of communication under the criteria set forth by the court.57 This criticism would not be silenced by the ECJ's decision in the OSDD/Divani

Akropolis case,58 five years later, where the simple act by a Greek hotel to connect television sets in each of its room to the hotel's central antenna was considered a communication to the public in the sense of article 3.59

53 Paragraph 46.

54 Paragraph 44 (emphasis added).

55 Paragraph 50 – 51. Probably the greatest objections to this decision come from the nature of hotel rooms: namely, that they function as a home-away-from-home for travelers. This feeling of “home” brings with it greater privacy

considerations and fuels a (false) analogy with television viewing as it occurs at home. At the same time, it also masks the for-profit nature of the hotel business.

56 Paragraph 51. 57 Visser2013, p. 44.

58 ECJ 18 March 2010, C-136/09 (OSDD/Divani Akropolis). 59 Visser2013, p. 44.

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2.2.2 Football Association Premier League and Others

The Premier League case60 gave the ECJ, amongst other things, the occasion to revisit the criteria it had established in the SGAE case. This complicated case, which began with a small pub owner in England who used a satellite decoder acquired from Greece to play English professional football matches on the television in her pub, touched on a number of directives and, more importantly, the workings of the European single market. But it also examines the nature of “intervention” in the case of smaller businesses such as a local pub – namely, “does the transmission of broadcast works, via a television screen and speakers, to the customers present in a public house” constitute an act of

communication as in article 3 Copyright Directive?61

The court begins by further explaining the concept of “communication to the public,” indicating that the concept (traceable eventually to Berne's article 11bis (iii)) includes “communication by

loudspeaker or any other instrument transmitting, by signs, sounds or images, the broadcast of the work.”62 Under the Copyright Directive, the concept must be interpreted more broadly, such that it includes “any transmission of the protected works, irrespective of the technical means or process used.”63 The indispensable, intentional nature of the intervention in SGAE is, according to the court, similar to that which the pub owner does: without her provision of satellite receiver and television, the patrons would be unable to enjoy the broadcast work, even though they are located within the broadcast area.64 Thus the owner of the pub effects an act of communication as outlined in article 3.65

However, this act of communication only falls under the exclusive rights of the author if the communication reaches a “new public.” Do the patrons in the public house form a public – since there are certainly many fewer than guests in a hotel – let alone a “new public”? The court here answers both questions in the affirmative. Regarding the first, the court bypasses the consideration of size of group and ever-changing nature of a group (though pub patrons could be considered to follow each other in reasonably rapid succession), and relies on the mere fact that a public house is, in fact, “a place accessible to the public.”66 That they form a “new public” (i.e. a public beyond the private individuals enjoying the works at home or with friends and family) is easily accepted using the same reasoning 60 ECJ 4 October 2011, joined cases C-403/08 and C-429/08 (Football Association Premier League and Others). 61 Paragraph 190.

62 Paragraph 192 and article 11bis Berne Convention (1971). 63 Paragraph 193. 64 Paragraph 194 - 195. 65 Paragraph 196. 66 Paragraph 198. 11

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from SGAE.67 As a final note, the court states that “it is not irrelevant that a 'communication'. . . is of a profit-making nature.”68 This backhanded formulation seems to indicate that, while certainly not a necessary condition as stated in SGAE, the presence of a financial advantage can play a role in the qualifying a particular act as an act of communication from article 3.

2.2.3 Marco del Corso

An interesting test of the criteria from the SGAE and Premier League cases was the Marco del

Corso case.69 In a case built on neighboring rights (instead of copyright) but with important

repercussions for interpretation of the Copyright Directive, the Italian collective-rights association for phonogram producers SCF began a process against dentist Marco del Corso, seeking equitable

remuneration for what it considered a communication to the public of music played in the waiting room of his office. Mr. del Corso contended that remuneration had already been paid by the radio stations he played in his office, and that since he never played music from a physical phonogram he was not liable for the remuneration. Furthermore, his dentist office was a private place, so no communication in public places (as the Italian law required) had occurred.70

Accepting that the dentist had played some form of music, whether radio or phonographic, as background music for his patients, the court assessed that this was an “intentional intervention” on his part and that intervention was indispensable.71 The true question was: is the clientele of a dentist’s office a “new public”? The court again reiterates the conditions it set forth in SGAE and Premier

League and went further. Citing the WIPO glossary, the judges note that an act of communication is

“making a work ... perceptible in any appropriate manner to persons in general” and not simply a private group.72 That implies, as stated by the court before, “a certain de minimis threshold” which excludes groups that are too small and rather “implies a fairly large number of persons.”73 That number is only determinable by considering the number of people that have access to the work at any one time as well as those having access to the work in succession.74 As an additional caveat, the court notes that one relevant feature of the public is that they are in certain regards “receptive” to the act of 67 Ibid.

68 Paragraph 204 (emphasis added). See Visser 2013, p. 45. 69 ECJ 15 March 2012, C-135/10 (SCF/Marco del Corso).

70 See paragraph 28 – 32 of the judgment. This defense relies strongly on the criteria that the ECJ used to define pub patrons as a public in Premier League.

71 Paragraphs 65 – 69, 82, 94. 72 Paragraph 85. 73 Paragraph 86 and 84. 74 Paragraph 87. 12

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communication and “not merely 'caught' by chance.”75 Ironically, this last criterion is the most difficult to mesh with the previous judgments: firstly, it was considered sufficient in earlier cases that provision of infrastructure (“access” to the works) was available to hotel guests;76 secondly, why are hotel guests any more “receptive” to these works than dentists' patients?

In the end, the court found that Mr. del Corso had not, in fact, committed a prohibited act of communication to the public. The patients of the dentist formed a closed group, not people “in general.” There was no profit motivation for the dentist, as playing music would not result in more patients.77 And finally, since the patients come to the dentist's office for treatment, not music, and the music plays no part in the treatment, they cannot be presumed to be receptive to the music.78 That critics point to a variety of faults in the judgment and the relevant criteria (“I know hotels with

television that attract fewer successive guests than your average dentist's office”79), does not imply an unfair or incorrect outcome, given that, in general, a dentist's office can hardly be considered a public place.

2.2.4 ITV/TV Catchup

The TV Catchup (TVC) case80 finally brings an element of the internet into the discussion of the communication and making-available rights. TVC is an internet-streaming service in the UK that exploited the market for streaming the free-to-air terrestrial broadcasts, which every TV owner in the country could receive, over the internet. TVC has also learned from previous ECJ rulings on the nature of the communication and making-available right: it asserted that its service was simply a technical means to maintain or improve the quality of reception;81 and further that, in any case, there was no possibility of a “new public” because TVC was limited to UK users who confirmed that they held a valid TV license.82 The latter is quite important: with its TV-licensing system, the British government has, more than any other EU country, segmented a part of the population and licensed them to view terrestrial broadcasts. This segment is, conceivably, the public to whom the broadcast organizations 75 Paragraph 91.

76 See the SGAE and, especially, the OSDD/Divani Akropolis cases. Ironically the Phonographic Performance Ireland case, published on the same day, found that the mere provision of cd-players and cd's in hotel rooms did constitute a prohibited act of communication to a new public.

77 Maybe fewer, even, depending on the quality of the music played. 78 Paragraphs 96 – 99.

79 Hugenholtz 2013, p. 3.

80 ECJ 7 March 2013, C-607/11 (ITV/TV Catchup).

81 See paragraph 27 - 28, the phrasing is taken directly from the ECJ case law, first seen in SGAE, and referred to what the hotel was not doing by placing TV's in each room and connecting them to the broadcast signals (i.e. the intervention). 82 Hugenholtz 2013-2, p. 1.

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communicate their works. TVC argued that whatever the status of its “communication,” there could be no “new public.”

The court was not convinced by the arguments from TVC. It noted that the “technical means” defense was not applicable here – “the intervention of such technical means must be limited to

maintaining and improving the quality of reception of a pre-existing transmission and cannot be used for any other transmission.”83 The court then determines from the sheer existence of regulation about the multiple uses to which a protected work can be put, that “each transmission or retransmission of a work which uses a specific technical means must, as a rule, be individually authorized by the author of the work in question.”84 The retransmission by TVC was then an act of communication.85

But is there a “public,” let alone a “new public”?86 The court reiterates its previous criteria for the concept of public: namely a de minimis threshold of a large number of people, namely an

“indeterminate amount of potential recipients.”87 That the users of TVC connect to the service on a one-to-one basis, instead of en masse like pub or hotel guests, is no problem: “the cumulative effect” of successive users, not limited in any way by the one-to-one nature of the connection, results in a service that is aimed at fairly large, indeterminate number of people.88 That public, not surprisingly, is also “new”: terrestrial broadcast and internet streaming are each, individually a transmission and “each is intended for a public.”89 Since each transmission (i.e. transmission by a specific technical means) must be individually authorized by the author of the work, there is no need to consider whether the public is “new.”90 Though somewhat unexpected and unclear, this reasoning reflects the practical features of the market for audiovisual works: namely, a market segmentation along the lines of technical means such as online distribution, CD's, DVD's, etc. Furthermore, as Hugenholtz points out, it is not fair to make the scope of an exclusive right such as the communication right dependent on whether the author has taken possible new technological means into account.91

2.2.5 Svensson

83 Paragraph 29 (emphasis added). 84 Paragraph 24 (emphasis added). 85 Paragraph 30. 86 Paragraph 31. 87 Paragraph 32. 88 Paragraph 32 – 36. 89 Paragraph 39. 90 Ibid. 91 Hugenholtz 2013-2, p. 3. 14

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The Svensson case92 was one of the most eagerly anticipated ECJ decisions in years. Like TV

Catchup, the case was firmly anchored in the world of the internet. The court case itself was brought

by a group of journalists from the Göteborgs-Posten newspaper (Sweden) against the website Retriever Sverige. The latter is a media-monitoring and -analysis company which “provides you with quick access to all the relevant information from newspapers, magazines, radio, TV, the internet and social media,” and which was focused on the Nordic region.93 Through its website, Retriever provides its clients with lists of clickable internet links to articles published by other websites, including articles published on the Göteborgs-Posten website written by the claimants.94 Redirection of the clients to the articles external to the Retriever website occurred with a so-called “framed link” whereby the external article is displayed for the client, but a banner from Retriever remains at the top of the screen.95 The journalists sued Retriever for compensation, arguing that the latter had used the former's protected works without their authorization.96 Retriever responded that the provision of internet links, which involves no transmission of protected works, “does not constitute an act liable to affect copyright in those works.”97 Furthermore, the protected articles were freely available on the newspaper's website. The question before the judges of the ECJ was, quite simply, is the provision on a website of clickable internet links (i.e. hyperlinks) to works that are freely available on a second website an act of

communication to the public under article 3 of the Copyright Directive?

The ECJ answered the question in the affirmative. Using time-tested reasoning from as far back as SGAE, the court reasoned that “the existence of an 'act of communication' must be construed

broadly” in order to provide the high level of protection as outlined in recital 9 of the directive.98 The courts then notes that the provision of a clickable link on one site which links to a work on a second site, “affords users of the first site direct access” to that work,99 and that according to the provisions of article 3 it is sufficient for a qualification as an act of communication that “a work is made available to a public in such a way that the persons from that public may access it, irrespective of whether they avail themselves of that opportunity.”100

But an act of communication requires authorization only when a “new public” is reached

92 ECJ 13 February 2014, C-466/12 (Svensson e.a./Retriever Sverige AB).

93 See their website, http://www.retriever.se (redirects to http://www.retriever-info.com/sv/?redirect=true ) and, in English,: http://www.retriever-info.com/en/om-oss/ 94 Paragraph 8. 95 See Tsoutsanis 2014, p.3. 96 Paragraph 9. 97 Paragraph 12. 98 Paragraph 17. 99 Paragraph 18. 100 Paragraph 19. 15

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because of it. The court returns to its time-tested criteria for the concept of “public,” noting that Retreiver's act of communication is aimed at all potential users of its site and therefore “an

indeterminate and fairly large number” of people.101 Since in casu both communications to the public (the initial by the journalists on the newspaper, the secondary by Retriever) are effected by the same technical means (as opposed to the “retransmission” in the TV Catchup case), the threshold for

authorization is then that communication reaches a “new public, that is to say . . . a public that was not taken into account by the copyright holders when they authorized the initial communication to the public.”102 This is where the claimants stumble. The court notes that, since the Göteborgs-Posten website lacked any restrictions for users, the initial communication was towards “all internet users.”103 Since all of Retrievers clients could access directly the works on the newspaper's website, they by extension formed part of the public taken into consideration by the rights holders in their initial communication. This is only different if the provision of links on a referring (secondary) website works to circumvent access restrictions on the initial website – in that case, there is a new public. The end result is: no new public, no need for authorization from the rights holder.104 This holds true even if, through use of the “framed” links, the work appears to users as located on a website other than that upon which it is first communicated.105

The opinions on the decision were varied. It seems clear that most critics felt that, in the end, the right answer had been found: there was no infringement of the making-available right through the posting of hyperlinks. However, many argued that while the answer was correct, the reasoning left much to be desired. The European Copyright Society (ECS), in its opinion on Svensson106 was one of the most critical commentators. The ECS emphasized that hyperlinking is “the single most important” feature of the internet, that it is crucial to freedom of expression and access to information, that it serves as a defining feature of the internet as network and thus is irreplaceable as pathfinder in the internet jungle. It must be, therefore, minimally regulated.107 They further argue for an interpretation of the communication and making-available rights of article 3 that relies on actual “transmission” of the protected work and not simply an indication of the location of the work (i.e. a devolution of making-available into a vague “access” right).108 Further, that the making-available of a work shifts

101 Paragraphs 21 – 22. 102 Paragraph 24. 103 Paragraph 26. 104 Paragraphs 27 – 28. 105 Paragraph 29. 106 See Bently e.a. 2014. 107 Bently e.a. 2014, par. 2 -5. 108 Ibid, par. 26.

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legal protection to before actual transmission, as Depreeuw noted, and thus creates an “access” right still does not justify the equation of the true creation of access (namely, uploading of the work and making it searchable/reachable to an internet public) with the mere provision of a hyperlink. The relationship of the hyperlink to the work itself is truly tenuous: after all, how many “broken links” are there where the hyperlink redirects to a work that has been removed. Can this still be considered an act of making available of that (since disappeared) work to the public?109

On the other side of the issue, Tsoutsanis110 very deftly defends the ECJ's decision and attempts to refute the arguments of the ECS. He begins by noting not only that hyperlinking comes in many forms and with various degrees of “communication” or “transmission” of the works, from fully-embedded video links to a simple pasting of a (non-clickable) URL on a webpage, but also that the mere equation of hyperlinks with making-available does not imply infringement for every link.111 From jurisprudence we know that, at the bare minimum, making available with the same technical means must be directed towards a “new public.” Given the outcome of Svensson, it is hard to refute this point. Tsoutsanis also attacks the notion that making-available or communicating to the public involves actual “transmission” of the works. His argument is backed by references to several recognized sources,112 but in light of the ECS arguments and the use of the word in several ECJ cases,113 the full ramifications are unclear. What Tsoutsanis gets right is that, as demonstrated above, the ECJ decision can at least be said to be consistent with earlier case-law and the general spirit of the Copyright Directive. He notes that the judges were bound by prescriptions such as the need to offer high levels of protection, to be technologically neutral or to allow for a consistent interpretation of EU norms across the single market.114 His analysis is detailed and correct, and yet there is still something missing from his (and the ECJ's) discussion: the work itself. After all, Copyright Law 101 teaches us that the subject of and the object of copyright are the “works” themselves. Whether consistent or not with previous jurisprudence, the ECJ misses a direct connection (“transmission” the ECS might argue) to the work itself. After all, who truly provides the “direct access” to the work: the hyperlinker or the uploader? This disconnect, and its ramifications, possibly explain the heated reaction from many commentators.

109 Ibid, par. 41. Here the ECS references the German Paperboy case which, until Svensson, was an oft-mentioned court case dealing with hyperlinking and wherein was decided that a hyperlink was not a communication of a work. See also Walter & Von Lewinski 2010, p. 985.

110 See Tsoutsanis 2014.

111 Ibid, p. 2 – 4; see also Strowell 2009.

112 Ibid, p. 4 – 7. See also section 2.1.1 of this paper. 113 See Bently e.a. 2014, p.2 – 6.

114 Ibid, p. 10 – 14.

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Finally, it is important to mention an important point with respect to the arguments from Tsoutsanis and the ECJ regarding the recitals and the spirit of the Copyright Directive. It has been noted that in its decisions the ECJ consistently refers to the recitals of the directive that implore a “broad interpretation” of the communication right coupled with a “high level of protection” for authors.115 However, these recitals do not validate every far-reaching interpretation of legal norms at issue. If Svensson had been decided in another way, if hyperlinking were not considered a making-available of a protected work, it does not mean that the level of protection for authors in the EU is any lower than it was before the decision. The recitals offer a series of considerations to help properly steer the weighing of interests that occur in such cases. On the other side of that scale, as noted by the ECS, are other important European norms such as freedom of speech, freedom of thought and access to information. The question still remains, where lies the balance?

2.3 Trends in the ECJ's Treatment of the Communication Right

From the analysis of case law above, we can distill several important trends in the ECJ's interpretation of the communication right which can provide guidance in analysis of current litigation in the Netherlands. Returning to the original dichotomy of the communication right, we see that the ECJ judges are consistent in their analysis that there must be an “act of communication” and that the public to whom the communication is addressed can play a role in understanding whether or not the communication itself was or was not authorized.

2.3.1 Act of Communication

Of the two constituent parts of the communication right (“communication” and “the public”), the most clear is the concept of an act of communication. The central rule outlined by the ECJ is that an author has the exclusive right to authorize each independent act of communication. When the author of a work authorizes a communication, such as a broadcast of his work on television, he only considers the “direct users,” ostensibly people in private places such as a home, who only engage in “simple reception” of the broadcast.116 A further, secondary act of communication occurs when a third party, such as a hotel or bar, engages in an “independent act” that provides (secondary) access to the work. This independent act is what the ECJ refers to as an “intervention:” it can be the showing or 115 See, for example, Tsoutanis' discussion of these points: Tsoutsanis 2014, p. 10.

116 See section 2.2.1, SGAE.

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playing of a work through televisions or loudspeakers, it can be the provision of facilities by which access is given to the works, or any transmission/retransmission of a work. In Marco del Corso, the ECJ notes that, generally, such an act of communication can be described as “making a work

perceptible to persons in general.”117

A deeper analysis of the features of “interventions” shows that the ECJ has also taken certain factors into account. The intervention that results in an act of communication is done “with full knowledge,” that will say intentionally. Furthermore, the intervention must be “indispensable” in the sense that without that independent act the public that ultimately perceives the work would be unable to do so.118 An interesting feature of intervention is that technique used for the intervention is of no importance: this is consistent with a technologically-neutral interpretation that the court has used. However, where a transmission or retransmission uses a different “specific technical means” (i.e. a technical means different from the original transmission), each and every (re)transmission must be authorized by the author of the work.119 Finally, and possibly most important in the wake of Svensson, is that with both an act of communication and an act of making available the mere provision of “direct access” to users is sufficient.120 Thus, it does not matter if users in each case actually avail themselves of the access to works, whether by turning on the hotel-room television or clicking on a hyperlink, the act of communication is completed through the simple provision of access to the work. Finally, the profit-motive may, but need not, play a role in qualifying certain interventions as an act of

communication.

2.3.2 The Public

The ECJ places a great deal of emphasis on the criteria of “the public” and “the new public,” even though, factually considered, these concepts can lead to a certain degree of circular reasoning.121 Though Visser notes that any eventual factual analysis regarding these two terms will largely depend on other factors in the case,122 the ECJ has provided a fair bit of guidance to help understand these

concepts.

The concept of “public” in general (as applies to both to the “direct users” of the original public 117 See section 2.2.3, Marco del Corso.

118 See section 2.2.2, Premier League.

119 See 2.2.4 TV Catchup. Also note, as will be discussed below, that the “new public” criteria does not apply here, since each transmission by different technical measures must be individually authorized.

120 See 2.2.1 SGAE and 2.2.5 Svensson. 121 Visser 2013, p. 45 – 46.

122 Visser 2013, p. 46.

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and those members of the “new public”) implies an “indeterminate number of potential viewers.” That criterion, from the Lagardére case and quoted in SGAE, also implies a “fairly large number of

people.”123 From both SGAE and Premier League, we can also understand that the term “public” can be equivalent to “in a place accessible to the public,” so that the term can apply even when the number of persons accessing the work is not “indeterminate.” Furthermore, as is clear from the inclusion of making available in the communication right, a public need not access the work as a unified whole: a succession of people, forming a fairly large number, can also be a public.124 What is not a public, however, is a closed group of people such as the patients of a dentist’s office, even though the exact makeup of this group may change with time (and thus be “indeterminate”).125

Now we must consider the dichotomy of “the public” as envisaged by the authorizing party126 and the “new public” as (conceivably) reached through an intervention. Authorization for an

intervention is only necessary when the public reached is a “new public,” and, as noted above in TVC, the “new public” a criterion only plays a role when the intervention provides access to the work through the same technical means. Further, the “new” public must still retain the defining

characteristics of “a” public: namely a fairly large, indeterminate (or in a public place) number of people. Furthermore, this “new public” will not coincide with the “direct users” the author considered in his original authorization.

But here we run into Visser's logical paradox. As he notes, the qualification of a “new public” will often rest on other factors since the original public envisioned by the author is a piece of legal fiction. The decision in TVC provides a window onto these factors: as Hugenholtz notes, the author cannot be penalized for not taking different technical means of communication of his work into account. In this case, then, it seems that market segmentation can play a role in determining a “new public.”127 Or that, when articles placed on the internet are freely available to any user, without access restrictions, there can be no new public.128 Ultimately, this dichotomy will remain vague and

inherently dependent on the facts of the specific dispute being litigated.

123 See section 2.2.1 SGAE.

124 Whether these successive groups of people are hotel guests (SGAE) or internet users (Svensson). 125 See 2.2.3 Marco del Corso.

126 The “direct users” as mentioned above. See 2.2.1 SGAE.

127 This is not stated explicitly by the ECJ, who note only that the “new public” criteria need not be reviewed when different technical means are used. However, Hugenholtz suggests this could be a possibility. See Hugenholtz 2013-2, p. 95.

128 See 2.2.5 Svensson.

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Chapter 3: The Dutch Copyright Act

3.1 The Structure of the Dutch Copyright Act

The Dutch Copyright Act of 1912 (DCA), was created to update the previous copyright act of 1881, which only covered the public performance of music and plays. The new act applied to a wider range of works, including literary works, early films and paintings.129 It also attempted to incorporate many of the early Berne Convention rights. The legislators of the time seem to have conceived of the copyright as, at its heart, a public performance and reproduction right. That makes the DCA, which is still the current copyright and related rights legislation of the Netherlands, rather unique. Where many copyright acts detail various rights in individual articles, the creators of the DCA wrapped many of these rights into a single article. Visser notes that this does not seem to be a grand plan of the

legislators at the time but rather a simple choice to bring performance and distribution rights under one article.130 That article, article 12 of the DCA, is titled in Dutch “openbaar maken,” which means, literally translated, “making public.” This term, however, does not quite accurately describe the

complex nature of the rights involved. In fact, this single article covers many separate rights: the right of public performance, the right of communication and making available to the public and the

distribution right all fall under this article. This makes an accurate translation of the term difficult: Visser, a veteran Dutch commentator on copyright, chooses to refer to it along the lines of article 3 of the Copyright Directive, “communication to the public,” since it basically covers those rights.131 Suffice it to say that the concept must be broadly interpreted and, especially, interpreted within the context of the work being communicated or distributed.132

Most importantly, the DCA lacks the concept of “secondary” or “indirect” infringement,

whereby the perpetrator of secondary infringement is not himself engaged in any direct infringement of the work but instead provides help or encourages another's direct infringement. This concept is instead covered by the general tort article of the Dutch Civil Code (DCC), namely article 6:162. The

secondary infringement is then classified as an 'unlawful act,' namely a violation of the rights of others or societal norms. According to case-law in the Netherlands, this tort liability can be assumed for “assisting in, facilitating, advertising or making a profit from copyright infringement.”133 Several cases

129 Visser 2012, p. 228. 130 Ibid. 131 Ibid, p. 226 – 227. 132 Ibid, p. 230 – 231. 133 Ibid, p. 225. 21

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regarding peer-to-peer file-sharing and the making-available right on the internet were decided under this tort article.134

3.2 Implementation of the Copyright Directive in the Dutch Legal Order

The DCA includes not only implementation of the Copyright Directive, but also various aspects of other directives touching on copyright in cable and satellite retransmission as well as neighboring rights and the requirements of international conventions like Berne.135 The main changes in the DCA from the implementation of the Copyright Directive was not, as many would suppose, inclusion of specific articles dealing with the communication making-available rights. The legislators at the time felt that the broad nature of article 12's concept of openbaar maken suitably covered these new rights. Instead, the greatest alteration was simply the inclusion, for the first time, of a specific article on exhaustion.136

Chapter 4: The Svensson-Effect on Copyright Litigation in the Netherlands

4.1 The Britt Dekker Case137

For many foreigners, Britt Dekker is a complete unknown. To many Dutch, she is known all too well. For those finding themselves in the former category, she is a reality-television star in the Netherlands with several shows to her name: what most people would classify as a “B” celebrity. That is the reason that Playboy magazine, published in the Netherlands by Sanoma Media, chose her for a nude photo shoot in October of 2011 that would appear in its December 2011 issue. The photos were shot on the 13th and 14th of October of that year.138

GeenStijl (GS), which translates into English as “without style” or “class-less,” operates a

134 See, for example, with regards to hyperlinks: Amsterdam Court of Appeals 15 January 2012, case number 200.095.838/01 (over hyperlinking to illegally uploaded solutions to math textbooks); and The Hague Court of Appeals 15 November 2010, case number 200.069.970-01 (FTD). See also Visser 2012, p. 257 – 58.

135 Visser 2012, p. 241. 136 Ibid, p. 230.

137 The case in first instance, Amsterdam District Court 12 September 2012, case number 507119 (Sanoma v. GS

Media B.V.); and, on appeal, Amsterdam Court of Appeal 19 November 2013, case number 507119 (GS Media B.V. v. Sanoma).

138 Paragraph 2.1 – 2.5 in first instance (FI).

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cultural and news web-blog at the address, www.geenstijl.nl.139 On the 27th of October, GS placed an item on its blog that announced that (some of) the photos from the Britt Dekker photo shoot, whether stolen or leaked, had been uploaded as a zip-file to an online file “locker” website140, where it was now available to anyone with the URL-address of that particular “locker.” GS placed, at the end of the blog item, a hyperlink to the URL-address of the locker that contained the leaked photos. Later, when the Sanoma had succeeded in having the photos removed from the first website, GS regularly published updates with new hyperlinks to where the photos could also be found.141 On the 7th of November, 2011, Sanoma sued GS for primarily copyright infringement and, secondarily, under the tort article for unlawful acts that violated its copyright.

In the decision from the Amsterdam District Court, the court of first instance applied the ECJ criteria for making available as discussed above, ironically with similar reasoning to that of the ECJ in

Svensson, to the case at hand: namely, is the placement of hyperlink by GS an intentional intervention,

by which an (new) act of making-available (communication) to the public occurs, and by which a new public is reached? The court noted that the placing of a hyperlink was “in principle, not of itself a making-available.”142 That occurred, according to the court, on the website where the file was located or could be downloaded – here, the file-locker website.143 However, it was clear that through

placement of the hyperlink on its website GS had intentionally intervened whereby access to the photos had been granted to the (general) public. The intervention was indispensable, as until the time of the hyperlink placement, the photos were only available to the leaker (who had, it is assumed, uploaded the photos) and the blog's editors.144 After placement, the entire visitor pool of GS, a not-paltry 230,000 people per day according to the blog itself, were able to view the photos.145 As regards the criteria of a “new public,” the court was quick in its assessment that, since the photos had not been legally

published by Sanoma and since the group of people aware of the leaked photos was relatively small, the making available by GS was essentially only to a new public. Finally, the court found that there 139 Par. 2.3 (FI). A self-published description of the blog states: “On GeenStijl, news items, damaging disclosures and

investigative journalism alternate with lighter subjects and some pretty crazy insanity. The editors inform 230,000 visitors daily over the other side of the news.”

140 An online “locker” is a type of cloud storage (that is, storage not on the hard-drive of a computer, but on a website's server and therefore only accessible through the internet) where larger files (such as digital audio, video and photo files) can be stored and shared easily. See par. 4.10 and Triaille 2013, p. 126.

141 Par. 2.6 – 2.7 (FI). For the original blog post, see

http://www.geenstijl.nl/mt/archieven/2011/10/britt_dekker_heeft_een_kale_ku.html. 142 Par. 4.11 (FI).

143 Ibid.

144 An important point here is that the file-locker website was not indexed by search engines such as Google. That implies that, although no security restrictions exist on the locker website, it cannot be said that the photos were freely available to the general web-surfing public. See par. 4.11 (FI).

145 Par. 4.14 (FI).

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was indeed a profit-making aspect to GS's publishing of the hyperlink: it noted that the blog post about the photos was the most-viewed topic on the GS website in 2011, and that it had been placed with the intention to keep current visitors and attract new ones.146 The court, seemingly anticipating the

Svensson decision that would come two years later, found that GS had indeed (directly) infringed on

the copyright of Sanoma.

This result is somewhat surprising since it is clear from the beginning of the court's

considerations that the placement of hyperlinks was, in fact, not a making-available or communication to the public.147 Visser notes that the court bases its judgment in particular on the complete obscurity of that particular file-locker on the internet, whereby it was only the (very loud and publicized)

announcement on the GS blog that allowed the general public to find it.148 However, it seems that the court's finding that GS had committed an act of infringement without directly infringing on any specified rights is a result of one of two things. Either the overwhelming nature of the evidence (that, in general, GS had intended to make these photos available to the greatest number of visitors to its sight, and had done so with a fair degree of malice and self-aggrandizement) forced the court to find that the end result was equivalent to infringement. Possibly it found that even the distribution or reproduction right (which also fall under the general term “openbaar maken” from article 12 DCA)149 had been violated, given that the making-available by GS preceded the release of that issue of the magazine. Or, the court had considered the expansive nature of the article 12 DCA rights (“openbaar maken”), which includes but has greater scope than those rights from article 3 Copyright Directive, and found that GS had infringed on those rights. This is primarily speculation since the reasoning behind the qualification of GS's acts as direct infringement is never explained in the judgment. That is unfortunate, given that standard case law in the Netherlands indicates that a tort claim – based on a systematic profiting from or encouragement of infringement – was the prescribed result.150

GS quickly announced (on its blog, of course) that it was going to appeal this decision of the Amsterdam District Court.151 And, unsurprisingly, GS won (the headline on the blog: “GeenStijl wins on appeal. Internet saved!”).152 Well, many might find that “won” is possibly too strong a word, as we shall soon see.

146 Par. 4.15 (FI). 147 See note 117 above. 148 Visser 2013, p. 49.

149 See, with regard to the Copyright Directive and the convergence of the communication and reproduction right in online transmission of works, Depreeuw 2014, p. 483.

150 See footnote 121.

151 See http://www.geenstijl.nl/mt/archieven/2012/09/officieel_geenstijl_gaat_in_ho.html. 152 See http://www.geenstijl.nl/mt/archieven/2013/11/geenstijl_wint_hoger_beroep_in.html.

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