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

Spiderweb

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

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

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

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

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

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

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

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

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

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

25. In the circumstances of this case, it must be observed that making available the works concerned by means of a clickable link, such as that in the main proceedings, does not lead to the works in question being communicated to a new public.

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

27. In those circumstances, it must be held that, where all the users of another site to whom the works at issue have been communicated by means of a clickable link could access those works directly on the site on which they were initially communicated, without the involvement of the manager of that other site, the users of the site managed by the latter must be deemed to be potential recipients of the initial communication and, therefore, as being part of the public taken into account by the copyright holders when they authorised the initial communication.

28. Therefore, since there is no new public, the authorisation of the copyright holders is not required for a communication to the public such as that in the main proceedings.

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

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

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

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

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

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

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

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

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

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

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

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

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

Rick Falkvinge

Rick is the founder of the first Pirate Party and a low-altitude motorcycle pilot. He works as Head of Privacy at the no-log VPN provider Private Internet Access; with his other 40 hours, he's developing an enterprise grade bitcoin wallet and HR system for activism.

Discussion

  1. Ian Betteridge

    I think you’re wrong, because I think you’re misunderstanding the scope of preliminary judgements.

    In a preliminary judgement, the ECJ can only rule on the questions put to it by a national court (or other qualified body). No statement in a judgement which is not a direct answer to a question can be taken as a binding ruling on EU law: it’s explanatory, not judgemental. The reason for this should be obvious: otherwise, the court could rule on interpretations of EU law where there was no dispute, effectively circumventing the power of the European Parliament and Council to set law.

    As the court was not asked to rule on the issue of the legality of republishing in general, it is not making any kind of binding decision on that issue.

    1. Rick Falkvinge

      This would be true, if it weren’t for the case that the court explicitly refers to settled case law in its explanation.

  2. nicu

    You are wrong with “effectively put in the public domain”. This ruling does not allow for a work published on the web to be reproduced in other media (like in print), because that would be a new audience. It does not allow for derivative works, as it does not allow other entities to claim ownership. That’s very far from “public domain”. It may be more akin to CC-BY-NC-ND, which is what copyright should be by default.

    1. Rick Falkvinge

      Yes, that’s what I meant with “in the public domain, at least as far as the Internet is concerned”. We’ve been told by various sources for years that you can’t “just take”, for example, images off a random website and use them on a website of your own. This ruling appears to say you can do exactly that, with any kind of work (image, audio, video, text), and that’s a game changer if it holds.

      However, as you point out, this is rather far from public domain. It only applies to the exact original work – although scaling is most likely within the limits of “the exact original work” – and it does not permit reuse outside of the web or derivative works, as you point out.

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        1. Rick Falkvinge

          I got the doc now, thanks. Taking the liberty of removing the link from your comment.

      2. Anonymous

        It also does’t necessarily allow you to continue publishing it when the original author has removed it (although hotlinking should be fine).

        Embedding an image in a new context might be claimed as a derivative work (I’m not sure that the EU has settled that yet), and there’s still the right to non-mutilation to worry about.

  3. Joss

    The ruling just means that if a work (image, video, article etc.) is freely available and accessible on the web, provided that the origin of the work is not from an obviously illegal source, then everyone can re-use the work in the same manner on a different website without the need to get permission from or pay a license fee to the holders of the copyright and related rights. (It means that if content is geographically restricted to the US, for example, re-use can only occur for the US, and that in turn means that the ruling doesn’t even apply, because the EU court doesn’t have jurisdiction there.) The ruling doesn’t mean that one can alter the work, e.g. remove a watermark from a preview image from an image library, remix a song, re-edit a video etc., it doesn’t mean that one can transfer the work into other areas of use/re-use, e.g. using online images in book printing, using a song in a different work like a film, and it doesn’t change the fact that every user (i.e. broadcaster) is still obligated to pay a royalties to the relevant collecting society, if they detect the re-use, or if the author of the work detects the re-use and asks his collecting society to, well, go and collect. As long as a work is copyrighted, copyright applies. And that means: authors must be paid for any use, any copy, any broadcast. The court simply ruled on re-use of freely available works on the internet, licenses yes/no etc. You seem a bit like those early Church Fathers, who saw crosses everywhere they went: every window frame, every mast on a ship, every fencepost… all of them crosses, all of them references to the Christian faith and the divinity of Christ. Likewise you see your thing (copyright reform etc.) everywhere, even if it’s not there, like in this case.

    1. Rick Falkvinge

      The ruling just means that if a work (image, video, article etc.) is freely available and accessible on the web, provided that the origin of the work is not from an obviously illegal source, then everyone can re-use the work in the same manner on a different website without the need to get permission from or pay a license fee to the holders of the copyright and related rights.

      Yes, that’s what I meant with “in the public domain, at least as far as the Internet is concerned”. We’ve been told by various sources for years that you can’t “just take”, for example, images off a random website and use them on a website of your own. This ruling appears to say you can do exactly that, with any kind of work (image, audio, video, text), and that’s a game changer if it holds.

      However, as you point out, this is rather far from public domain. It only applies to the exact original work – although scaling is most likely within the limits of “the exact original work”, probably cropping too – and it does not permit reuse outside of the web or derivative works.

  4. Tor

    I think you are wrong. I have yet to study the CJEU text in detail, but the way I understand it there are some limits:
    * the linking must “make [the work] available” using similar technical means as those used to publish the original (it’s a bit unclear exactly what this means)
    * the ruling only covers cases where the publication of the original was authorized

    Furthermore, you wrote: “The copyright monopoly holder has the exclusive right to produce physical copies of their works (article 2)”.
    However, there’s no mention in article 2 about the copies having to be physical. Hence, even if you would in some cases be allowed to “make available” copyrighted works to be public, you wouldn’t be allowed to make reproductions (eg. send digital copies via the Internet) without the copyright holder’s permission. Since you’re an experienced copyright debater I’m slightly puzzled by your confusion here.

    The IPKat blog has some good coverage of this case that I recommend. And there’s also an interesting ALAI study written by a study group chaired by prof. Jan Rosén (somewhat of a copyright maximalist and often used as a legal expert by the Swedish government/parliament for drafting changes to copyright law). The group’s report expresses support for the notion that linking is an act of “making available” as far as copyright law is concerned and takes issue with what is perceived as CJEU limiting the scope of the exclusive right to “make available” without proper legal basis.

    Now, the ALAI study of course has a clear agenda and some of the arguments are a bit weird and far-fetched, but at the same time I cannot help being partly convinced by their arguments. I get the impression that viewing linking as a kind of “making available” act might have been wrong to start with and this ruling is a slightly contorted way to try to escape the problems it created without completely breaking the Internet.

    In any case I find it interesting that prof. Rosén seems to be of the view that linking should be regarded as an act of making available and that every act of making available needs to be authorized by the rights holder. The logical conclusion of that is that one has to ask for permission before posting any external link on the web. Take a second to let that sink in! I wonder if our Swedish politicians are aware of these extreme views when they put mr. Rosén in charge of drafting new copyright legislation. It’s possible that he’s professional enough to set aside his own agenda (which also includes increasing the term for neighbouring rights to 95 years), but still…

    Anyway, even though I don’t agree with all your conclusions I agree that it’s an extremely interesting court ruling.

    1. Rick Falkvinge

      Yes, I did write quite explicitly that the copyright monopoly holder must have authorized the publication on a web page without access control for this to be true, didn’t I? It’s hard to know if this is the case, of course, but assumptions can be made depending on where you find a work – for example, if you find it at a reputable news source, I would say it’s safe to make such an assumption. At least it can be argued well in court that such an assumption can be safely made.

      As for “essentialy the same technical means”, I would say any transmission using HTTP or HTTPS of the work in the same digital format (jpeg, mpeg-4, text, etc, whatever the original format was) would qualify as well within the concept of “the same technical means”. I don’t have any grounds for this statement except I can’t see how you could draw a tighter loop around that concept.

      As for Article 2 in the EUCD, saying it covers physical copies was admittedly something of a simplification for the purposes of the article, but that’s what reproduction, fixations, and phonograms means in this context. So while there may be some applications that fall outside of the physical-copy domain, it’s still clear to me that this is the primary application of the article.

      I did see the ALAI study and I don’t give much for their conclusions, especially given their criticism of “the ECJ is wrong on the ‘new public’ stance”. It would appear to me that they’re essentially attempting to reject the reality established by the ECJ and replace it with one of their own. While their logic may have some merit, that’s not how the legal system works, and they of all people should know that. (Also, yes, Mr. Rosén is indeed a diehard monopoly maximalist.)

  5. Patrik

    What if the original source only offers the content for a limited time? Once the content is not available on the original site, it’s unclear to me whether the argument put forth would still be valid. Not in a common sense interpretation, anyway. Legal interpretation, on the other hand, quite often seem to defy logic and common sense – so I guess it could still hold true in a legal sense.

  6. SantaBJ

    The case law they draw on relies on the concept of “intended audience” for its ruling. This makes the “problem” easily circumvented; state on the website that the only audience licensed to view/use the content is those who visit the page on which the content is hosted. This changes the intended audience from the public internet at large, to only those who have actually visited the page where the copyright holder intended for it to be accessed.

    So, yeah, I agree that this could be a significant ruling with wide reaching consequences, and largely positive ones. However, it’s probably not game changing, since it would be so easy to circumvent.

    1. Rick Falkvinge

      The case law they draw on relies on the concept of “intended audience” for its ruling. This makes the “problem” easily circumvented; state on the website that the only audience licensed to view/use the content is those who visit the page on which the content is hosted.

      I very much doubt a court would buy that construct. After all, the copyright monopoly holder has given an a priori authorization to everybody who visits the web page to view the work. Therefore, the audience is already established as “every Internet user”; I can’t see how it can be artificially limited after the fact with such a disclaimer.

  7. Michael

    I’m trying to pick the legalese apart here. Not a lawyer, just trying to reason my way through this, as like the previous commenters I am not sure at all that your interpretation is strictly correct.

    Section 26 says that the content must be available without any technological protections for the remainder to apply. So putting it behind a login, a paywall, (presumably) something like a restricted-audience Facebook group, (maybe) HTTP referer checking, or anything similar invalidates all of this. However, there is a lot of content available that actually is available to anyone who merely asks for it by sending a request to the correct server without any special request preconditions. Let’s continue with only that content.

    Section 27 says that if you could access the same work by typing the URL into the browser’s address bar, without going through the second site at all, then those visiting the second site are part of the intended audience of the first site (where the content was originally made publicly available). After all, they could just as well be viewing it through the site where it was originally made publicly available, so this seems reasonable.

    Section 28 follows up on this by concluding that because 26 and 27, publishing content on one site without any technological restrictions means that the visitor to any other site is a part of the intended audience of the original publication. This follows logically from the above: if you could stumble onto the content by merely hammering on the keyboard, then any other site you’re visiting that merely tells you *how, specifically* to hammer on the keyboard doesn’t really change that fact.

    HOWEVER, as I read it, section 28 of the ruling does not grant the second site the right to *make their own copy of the originally published content* in the absence of the copyright holder’s permission to do so (specifically, or by publishing under a suitable license). IT FOLLOWS from this that the original location of the work must be used in the reference to it.

    Therefore, this states only that *linking* is allowed, not that *copying* is allowed.

    You could perhaps argue whether incorporating, say, a publicly available (given the URL) image from one site in a web page on another site is more properly referred to as copying or linking. But regardless of what you call it, if you can’t copy it to your own site (which, again, I don’t see how this ruling would allow) the publication on the original site remains the sole *copy* and the copyright holder can prevent further use either by removing it entirely from the original site, or by establishing some form of technological protection measures.

    1. Rick Falkvinge

      HOWEVER, as I read it, section 28 of the ruling does not grant the second site the right to *make their own copy of the originally published content* in the absence of the copyright holder’s permission to do so (specifically, or by publishing under a suitable license).

      It doesn’t have to (grant such a right). It has already stated that no such grant of right is required to communicate the same work to the same public using the same technical means. “Same work” here does not in any way, shape, or form imply “the same file from the same location”; rather, it is understood to be within the context of the EUCD, meaning “the same creative expression”.

      Therefore, as the court has said no permission is required, it does not have to state such a permission exists.

      1. next_ghost

        I’m pretty sure that once you start hosting the data yourself, you’ll run into problems with Article 2. This ruling doesn’t examine effects of Article 2 because the defendant didn’t host the data himself.

        1. Rick Falkvinge

          This is the first legally plausible objection I get to the article content. This is a quite possible shoot-down of my interpretation.

          However, it must be observed that the copyright monopoly holder has already authorized me to make a copy for my own use in order to view/see/listento the work in question from the original web page. While it can be questioned if it is always necessary to do so, it must be observed to be technically necessary in some cases, and the copyright monopoly holder has authorized all of them.

          Once I have my own copy authorized, I would not need permission to communicate it to the same public.

          But yes, I see how objections per article 2 are at least possible.

        2. Ninja

          What if you aren’t hosting the entirety of it? (Ie: pieces of a torrent)

          What if you are hosting it with the explicit purpose of communicating to said audience (the world) and not make use of it?

        3. next_ghost

          However, it must be observed that the copyright monopoly holder has already authorized me to make a copy for my own use in order to view/see/listento the work in question from the original web page. While it can be questioned if it is always necessary to do so, it must be observed to be technically necessary in some cases, and the copyright monopoly holder has authorized all of them.

          The authorization has to be in the form of explicit licence (like your CC0 footer on this site). If the original source website does not specify explicit licence, then you’re permitted to make copies only to the extent allowed by statutory copyright exceptions. And those exceptions are most often limited to either personal use by natural person or internal use by corporation. I believe only public libraries have statutory exception to make long-term copies of websites for public retransmission.

  8. Tor

    Falkvinge wrote: “Once I have my own copy authorized, I would not need permission to communicate it to the same public”

    As I interpret the ruling you would be permitted to make it available to the same public, but not make reproductions (i.e. digital copies) in the act of making it public. Without the right to do the latter the right to do the former is quite meaningless.

    However, if my reasoning is correct this could still have important implications and the distinction is not entirely without meaning. If someone were to be accused of copyright infringement due to posting copies of files that are elsewhere freely available on the Internet the damages that could be awarded would probably be much lower than if the “making available” right had been infringed, because the damages could only be based on an estimate of the number of illegally produced copies – not a hypothetical license fee for making the work available to everyone on the Internet (the latter being much higher in most cases).

    Some journalists and professional photographers might not be too happy about this.

    Btw. I found this IP Kat comment to be a succinct and insightful summary of the situation:
    “Hyperlinking makes it easier to reach additional works in the same way as the scooter makes it easier to get to the bookstore. Should the distribution right extend to all means to reach the bookstore?”

    We would do well with a bit more common sense like that in the legal system. The fundamental error here seems to lie in the decision to treat linking (at least the nonembedded kind) as an act at all covered by copyright law.

    1. Justin

      Due to the nature of HTTP – the very act of viewing a webpage that is online makes a copy. Your browser makes a copy of the page in it’s cache and then uses that copy to process the information to be displayed.

      Thus, any webpage put on the internet is intended to be copied by express permission – otherwise no one would be able to view it. This was true even before this new ruling, otherwise the internet couldn’t work.

      This new ruling allows you to communicate a work to the same public. Since copying is expressly permitted (otherwise the world wide web couldn’t work) there is no restriction to putting those copies on other sites that communicate to the same public.

      1. next_ghost

        Thus, any webpage put on the internet is intended to be copied by express permission – otherwise no one would be able to view it.

        Bzzzt. Wrong.

        You don’t need express permission to view a web page. All the temporary copies made on the way between source server and your computer’s display are covered by statutory exception in Article 5(1) of the Copyright Directive.

  9. Eli Cummings

    Wow. Everybody is slicing and dicing this ruling just like lawyers which usually means that the forest is missed for the tree.

    Whatever authority you want to attribute to this ruling it is clear it is an explanation of “settled case law”. This suggests that nothing has changed but that the ramifications of settled case law had not been well understood.

    Second, unless one restricts to a specific audience one’s content through some means, anything posted on the web can be linked to or copied in its original form onto another server and have a link on this other server which presents the material in the same way as the original link.

    Posting to the web with no restrictions to who can access the material by default makes the definition of the intended public to be all who have access to the web. Even if the original material is taken off the original server at some point this does not preclude the exact same material in its original form being made available by a different server since the default authorization allows for anyone who has access to the web to access the material. Just because the material is on a different server, there is not claim of ownership on the part of the person running the different server so there is no infringement. Since the material is presented in its original form it is seen in the same way it would have been had the material remained on the original server.

    This explanation is not about content it is about distribution. The same thing would apply if an airplane dropped leaflets intended for anybody on the ground and people on the ground picked up the leaflets, made copies and distributed them by hand. Those people distributing the leaflets by hand could not be held liable for copyright infringement by making a copy since the intended audience was anybody on the ground. As long as there is no claim of ownership of the copied material, distribution can occur as long as it is in line with the original intent.

    This is my understanding of the explanation.

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    I am so very glad to have stumbled upon this site ! While my computer and internet saviyness is inexcusably lacking, ” I am not even certain as to what hyper-linking entails”, I find the subjects of copyright law, copyright infringement, intellectual property, intellectual freedom and freedom of expression, to be enormously interesting, and as worthy of discussion and debate as any conglogermate of issues we modern, human like creatures must deal with.
    As for me personaly, I am of the opinion that copyright law, and or laws, ”particularly here in the US” are being interpreted and applied in such a way as to be contrary to the public interest, as well as individual freedom. A commenter on an associated blog stated with an irrational zeal, that the ” Freehajdists” of the world should be burnend at stake just as the pirates were in the past. To be sure, my loyalty is with the Freehajdists, and while I would never condone the tortureous execution of anyone, even fascists such as that commenter, I would have no qualms at all if all persons of like mind would just simply ,cease breathing. I am convinced that the true value of any thing, or any concept, can be, or at least should be, measured by the accesibility of that thing or idea, to each and every person, in need of that thing, or curious of that idea regardless of the individuals capacity to pay for said thing or idea. This is not to say that I have no regard for property rights, nor do I believe that people should be deprived compensation for work preformed. Being short on time and in need of rest, I will refrain from expounding on my thoughts any further at this time. Please feel free to respond to this comment, but be aware I will be making reciplicable comments as time allows, at a later date. Thank you and so long for now.

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