Lucie Guibault & Joao Pedro Quintais, "Copyright, technology and the exploitation of audiovisual works in the EU" (2014) European Audiovisual Observ

The paper delves into the European Union's initiatives to reform copyright laws, concentrating on both legislative proposals and industry-led solutions aimed at tackling issues in the audiovisual sector. These include challenges related to cross-border distribution and user-generated content . The effort to advance these reforms, however, encounters significant hurdles. Differing approaches among stakeholders and the reorganization within the European Commission have delayed progress, notably leading to the postponement of a planned white paper on these critical issues . Understanding the context of these challenges requires a look at the evolution of viewing habits. Two generations ago, movie watching was predominantly a cinema experience, and TV shows were limited to local channels. One generation ago, satellite and cable television made foreign productions accessible in homes, expanding viewers' horizons. Today, digital technology revolutionizes content consumption, enabling Europeans to watch global content on various devices, including TVs, computers, and mobile devices through streaming platforms and video-on-demand services.

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This shift in viewing trends has spurred the emergence of new business models for film and TV production and distribution, designed to cater to the growing demand for diverse audiovisual works. Rightsholders, in this changing landscape, expect robust laws to protect their creations, giving them the authority to permit or restrict use and ensuring they receive fair compensation. The European copyright framework has evolved to address these technological advancements. Directive 2001/29/EC, for instance, introduced the right to make works available online, adapting traditional copyright laws to the digital age. The scope of the right of communication to the public now includes online forms such as streaming and webcasting, although its interpretation remains complex and often contentious.

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Digital technologies, while enabling new business models, also introduce legal uncertainties. They can disrupt existing systems and create challenges, particularly with technology-dependent rights systems. For example, the SatCab Directive defines cable retransmission, but technological changes raise questions about its current relevance and legal interpretation. As traditional retransmission methods evolve, rightsholders may push for royalties based on exclusive rights instead of equitable remuneration.

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The article in question examines the impact of digital technology on the exploitation of audiovisual works under EU copyright law. It focuses specifically on internet use and cable retransmission, analyzing how these technologies influence legal frameworks and rights exploitation. The structure of the article provides an overview of the existing legal framework, delves into the nuances of internet exploitation, discusses the impact of digital technologies on cable retransmission, and concludes with insights on the future of rights in this rapidly evolving field. Economic rights encompass the authority to permit or prohibit the use of protected works and the entitlement to receive payment for such use. The Information Society Directive (InfoSoc Directive) covers these economic rights comprehensively, including reproduction, distribution, and public communication rights. These rights are harmonized across the European Union for authors and related works, aligning with international treaties to ensure consistency and protection.

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Article 2 of the InfoSoc Directive defines reproduction rights broadly, encompassing all forms of copying. These rights are equally applicable to authors, performers, producers, and broadcasters, ensuring that all creators and disseminators of content are protected. The broad definition of reproduction rights often overlaps with public communication rights, resulting in more restricted acts and the necessity for multiple licenses to use content. Article 3(1) grants authors the right to control the public communication of their works, including online access. This right extends to both online and traditional broadcasting methods, allowing authors to manage and monetize their works effectively. The InfoSoc Directive maintains the existing rules for satellite and cable broadcasting, ensuring that cable retransmission adheres to copyright rules and necessitates agreements with rights holders.

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The Court of Justice of the European Union (CJEU) has further clarified the concept of 'communication to the public' through various rulings. These cases have established criteria for what constitutes public communication, helping to determine whether an act of communication falls within legal boundaries. One crucial aspect is the user's role in making a communication to the public, which involves knowingly providing access to a broadcast containing protected work. Without this intervention, the audience would not be able to enjoy the broadcast.

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Examples of user intervention include showing football matches in pubs, playing music in hotels, and providing entertainment in dental practices. The definition of 'public' encompasses a large, indeterminate number of people, excluding small, insignificant groups. Criteria for determining the public include the number of people accessing the work simultaneously and in succession, emphasizing the scale of the audience.

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Distance communication, which refers to communication made to a public not present at the origin of the communication, is also covered under the directive. Furthermore, the profit-making nature of communication to the public is a significant consideration, as it often involves attracting customers and impacting financial outcomes. Although the profit criterion is not always necessary, it is frequently taken into account when evaluating the legality of public communication. The InfoSoc Directive and CJEU rulings together provide a comprehensive framework for understanding and regulating economic rights, reproduction, and public communication within the EU. These regulations ensure that rights holders can control and monetize their works while addressing the complexities introduced by digital technologies and new forms of content distribution.

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Traditional licensing practices by Collective Management Organizations (CMOs) to public institutions, such as hospitals and schools, may be impacted by the interpretation of communication rights. Under the new public concept, copyright owners must authorize the communication of their works to a public not originally intended by the authors. This concept ensures that rightsholders receive appropriate remuneration for satellite broadcasts. However, terms like 'potential audience' and 'new public' are ambiguous and open to various interpretations. The Court of Justice of the European Union (CJEU) consistently links the potential audience to the new public, despite the inherent vagueness of both terms. This interpretation by the Court may pose challenges to traditional licensing practices for public performances, potentially disrupting established norms.

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Currently, film rights are managed individually, unlike music rights. Producers consolidate all necessary rights to avoid fragmentation, yet EU film licensing remains predominantly national, complicating cross-border access. The audiovisual sector recognizes these cross-border challenges and aims to enhance content portability and discoverability to mitigate piracy. Consumers often complain about restrictions on access, price discrimination, and market partitioning, issues shared by online service providers concerned with cross-border content availability.

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The scope of reproduction and public communication rights under copyright law significantly impacts legal content offers. Varied interpretations of these rights create challenges for licensing and enforcement. The InfoSoc Directive suggests that copyright law should adapt to new economic realities, with courts shaping the scope of exclusive rights, particularly focusing on the right of communication to the public.

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The CJEU is now addressing the right of communication to the public in the internet context, including live TV streams and hyperlinks. The Court has developed criteria for both traditional and internet-based communication forms, although key issues like the overlap of reproduction rights and localization remain unaddressed. In the ITV Broadcasting case, the CJEU ruled on the internet retransmission of TV broadcasts by TV Catch-up (TVC), which allowed users to watch live TV streams online. The Court determined that TVC's service constituted a separate act of communication, requiring copyright authorization, as the retransmission reached a large audience and thus qualified as a communication to the public.

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The CJEU did not need to determine whether the retransmission reached a 'new' public due to its specific technical means. This decision underscores the necessity for individual authorizations for new communication methods. The CJEU's economic approach favors rightsholders, ensuring they retain control over new online dissemination models. The evolving interpretations of communication rights by the CJEU and the broad definitions within the InfoSoc Directive highlight the ongoing need to balance traditional licensing practices with emerging digital realities. These developments underscore the importance of adapting copyright law to ensure rightsholders are adequately compensated while addressing the complexities of modern content distribution. The CJEU's Svensson case, decided on February 13, 2014, addressed whether hyperlinking to online content falls under the author's right of communication to the public. This ruling significantly impacts how hyperlinks are treated in terms of copyright, emphasizing that new and disruptive technologies require proper authorization to protect rightsholders' interests. The 'new public' criterion may still apply if the communication method does not involve a specific technical means, highlighting the economic significance of new communication methods as a key factor in the Court's decisions. The CJEU's approach ensures that rightsholders maintain control over their works in the digital age, stressing the importance of securing authorizations for new uses of audiovisual works and reflecting the evolving nature of communication rights in the context of the internet and new technologies.

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Hyperlinking includes various forms, such as deep-linking, framing, inline linking, and embedded linking. Standard hyperlinks redirect users to another page, either the main page or a sub-page, while inline or embedded links fetch and display content from another site within the current page. Framing links show content from another site within a frame on the original site without opening a new window. Although hyperlinks are essential tools for accessing other web sources, they may not always fall under the 'making available' right.

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The European Copyright Society (ECS) argued that hyperlinking should not be considered communication to the public, reasoning that hyperlinks are not transmissions but references, and they do not communicate to a new public. Conversely, the International Literary and Artistic Association (ALAI) argued that links enabling access to protected material fall under the right of making available. According to ALAI, the right is infringed if content is made available without consent, protection measures are bypassed, or the content is used against the rightholder's will.

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The Svensson case involved a Swedish company linking to freely accessible articles, raising questions about restricted communication to the public. The CJEU's ruling in this case underscores the need for proper authorizations in the digital environment, ensuring that rightsholders can control the dissemination of their works even when new technologies like hyperlinking are involved. The Svensson case and subsequent CJEU rulings underscore the importance of adapting copyright law to the realities of the digital age. By clarifying the treatment of hyperlinks and the necessity of authorizations for new communication methods, the Court's decisions help maintain the balance between protecting rightsholders' interests and accommodating the dynamic nature of internet technologies. These rulings are crucial for ensuring that copyright law evolves in tandem with technological advancements, providing a robust framework for the protection and exploitation of audiovisual works in the digital landscape.

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The CJEU has ruled that providing direct access to content via hyperlinks constitutes an act of making available and communication to the public. This communication must be directed to a new public that was not initially considered by the copyright holders. If the linked content is already freely accessible to the general public, it is not considered a new public, and thus, no new authorization is required. Consequently, framing and embedding links might be exempt from copyright infringement if they do not target a new public.

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However, links that bypass access restrictions, such as paywalls or geo-blocking, create a new public, thereby requiring authorization from the rightsholders. Member States are not allowed to extend the concept of communication to the public beyond what is defined in Article 3(1) of the InfoSoc Directive. The Svensson decision has clarified the requirements of transmission and the new public concept within the right of making available. Certain cloud services that allow private use may not trigger the making available right but might instead trigger the reproduction right. Technical restrictions, such as bypassing paywalls or geo-blocking measures, constitute copyright infringement for both on-demand and streamed content. If content that was initially accessible becomes restricted later, a link infringes copyright only if it bypasses these new restrictions, though continuous monitoring by linkers is unlikely required.

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The issue of contractual restrictions remains ambiguous. It is unclear whether linking to freely accessible content with restrictive terms constitutes copyright infringement, especially if no technical or contractual terms were initially present. Implied licenses might apply in such cases. Linking to unauthorized copies on different websites may infringe copyright, but opinions differ on whether the linker's knowledge of authorization affects their liability. Even if a link does not infringe copyright, it might still be prohibited under unfair competition laws. This includes acts like framing that cause market confusion or economic harm. In the UK, framing that causes consumer confusion can be considered passing off, which protects original content providers from misrepresentation. In Germany, the Act against Unfair Competition can prohibit linking that harms competitors, consumers, or market participants, including bypassing advertisements and causing revenue loss.

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The legal landscape surrounding hyperlinking remains uncertain due to different interpretations and laws, particularly regarding technical and contractual restrictions. This legal uncertainty underscores the need for clearer guidelines and consistent application of copyright and competition laws in the context of linking scenarios. ?The CJEU’s rulings on hyperlinking have provided some clarity but also highlighted significant areas of legal ambiguity. By delineating the requirements for communication to a new public and the conditions under which linking might constitute copyright infringement, the Court has aimed to balance the protection of rightsholders with the practicalities of internet use. However, the complexities introduced by technical and contractual restrictions, along with the potential for unfair competition claims, indicate ongoing challenges in this evolving area of law.

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In the ever-evolving landscape of digital media, rightsholders face significant challenges in protecting their works from unauthorized use. They have various legal avenues to address unauthorized linking, including copyright and unfair competition laws. However, determining linker liability involves a nuanced assessment of whether the third-party site's content infringes copyright and if linking constitutes secondary liability. To navigate these complexities, rightsholders should proactively monitor and address unauthorized linking through available legal means, leveraging both copyright and unfair competition frameworks.

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The Court of Justice of the European Union (CJEU) plays a critical role in shaping the legal framework for communication to the public. For instance, in the ITV Broadcasting case, the CJEU briefly discussed the interaction between the InfoSoc Directive and the SatCab Directive. Cable retransmission, which involves rebroadcasting programs initially broadcast by another organization, qualifies as secondary communication to the public. However, with the shift from analogue to digital TV, content is now delivered indirectly via distributors, not directly by broadcasters, sparking debates on whether this constitutes primary communication.

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Some argue that this indirect delivery should be seen as primary communication, thus exempting it from SatCab Directive rules. In a notable dispute in the Netherlands, it was concluded that cable distribution no longer qualifies as cable retransmission due to the absence of initial public transmission. The Dutch Supreme Court ruled that direct one-on-one signal delivery doesn't qualify as communication to the public, invalidating the transfer of rights from performers to collecting societies under Dutch law. Similar disputes in Norway and Belgium saw courts ruling in favor of cable operators. The Brussels Court of Appeal subsequently sought the CJEU's clarification on whether direct injection by broadcasters constitutes communication to the public. The anticipated CJEU ruling is expected to provide clarity on the classification of cable retransmission and its implications for the role of collecting societies.

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The decision will have significant ramifications for whether cable operators must adhere to SatCab Directive rules or InfoSoc Directive rules, and it will influence who holds the rights—producers or collecting societies. The concept of 'communication to the public' in copyright law is crucial for rightsholders, as it allows them to control and license their works. The CJEU has developed criteria to determine what qualifies as communication to the public, including the identity of the communicator, the definition of the public, whether the communication reaches a new public, and if there is a profit motive.

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Despite the SatCab Directive's regime becoming outdated due to digital technology changes, rightsholders may need to seek new sources of remuneration through new forms of communication. Questions about whether cable operators need separate authorization for methods like 'direct injection' highlight ongoing uncertainties. As technology evolves, individual authors face challenges in securing fair remuneration for their works. The European Union has been proactive in clarifying these issues, with initiatives like 'Licences for Europe' addressing cross-border services and copyright exceptions, though facing challenges due to insufficient demand. Additionally, while the European Commission planned to publish a white paper to guide future legislative actions on various copyright issues, this was eventually dropped due to differing stakeholder opinions and internal reorganization. Ultimately, the CJEU's criteria for what constitutes an act of communication to the public remain essential for rightsholders to license their rights and prevent unauthorized use. This evolving legal landscape underscores the need for rightsholders to stay vigilant and adaptable, leveraging legal frameworks to protect their intellectual property in a digital world.

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