Chapter 11 Answer guidance to end of chapter questions

1. As the CJEU notes in GS Media, ‘it may be difficult, in particular for individuals who wish to post such links, to ascertain whether website to which those links are expected to lead, provides access to works which are protected and, if necessary, whether the copyright holders of those works have consented to their posting on the internet. Such ascertaining is all the more difficult where those rights have been the subject of sub-licenses. Moreover, the content of a website to which a hyperlink enables access may be changed after the creation of that link, including the protected works, without the person who created that link necessarily being aware of it.’ In light of this, do you believe the current approach taken by the CJEU in applying Art.3 strikes the right balance?

To answer this question I would expect the student to discuss in order:

1. The position of the GS Media case in the wider jurisprudence of the CJEU with regard to the communication to the public right. This means starting with the contextual cases of SGAE and TVCatchup and then discussing in some detail the prior case of Retriever Sverige (also perhaps Bestwater but this is less important than Retriever Sverige).
2. A thorough examination of the decision in GS Media and the distinction drawn by the CJEU between the knowledge of the actors in Retriever Sverige and GS Media.
3. A focus on the knowledge element (and duty of care) for commercial actors focussing on the specific findings of the court that  (1) Where a person acting not for profit publishes a link to a work available online without the consent of the rights holder, it is necessary to take account of the fact of whether the person knows, or cannot reasonably know, that the work has been published without consent. (2) Where the person knew or ought to have known that the link provided access to a work published illegally online, or provides a link to circumvent restrictions which limit access to a work, the provision of that link would constitute a communication to the public. (3) Where links are posted for profit the person posting the links should carry out the necessary checks to ensure that the work linked to is not illegally published. There is therefore a presumption that the posting of the link has been done with full knowledge of the protected nature of the work and the possible lack of consent to its publication online. In these circumstances, unless the presumption is rebutted, the posting of the link would be a communication to the public.
4. The question should then be addressed. In so doing later cases such as Stichting Brein v Wullems and Stichting Brein v Ziggo may be used to illustrate the answer.

2. Were the CJEU right to hold (in Ziggo) that ‘the operators of the online sharing platform, by making that platform available and managing it, provide their users with access to the works concerned. They can therefore be regarded as playing an essential role in making the works in question available’?

This is a question specifically on the role of parties in making a communication to the public. To answer it may be addressed thus:

1. The case must fist be contextualised within the growing jurisprudence of communication to the public case law. This means drawing the expansion of the Art.3 provision through early cases such as SGAE, TVCatchup, FA Premier League and Retriever Sverige to the recent cases on commercial actors - GS Media and Stichting Brein v Wullems.
2. From this context a close examination of the Ziggo case should be made focusing upon whether passively making available links qualifies as a communication to the public and whether this is an “essential role”.
3. Attention may be brought to bear on the four essential facts thought to demonstrate this by the CJEU: (1) the operators of The Pirate Bay were informed that their platform provides access to works published without the authorization of the right holders; (2) The Pirate Bay made clear, on blogs and online forums, their intention that their platform be used to infringe and encouraged users to engage in such infringement; (3) a large number of torrent files on The Pirate Bay relate to works published without the consent of the right holders, meaning that its operators ‘could not be unaware’ that their platform provides access to works published without the consent of the right holders; and (4) the making available and management of The Pirate Bay is carried out for the purpose of obtaining profit, in the form of advertising revenues.
4. Based on the analysis the question asked “can therefore be regarded as playing an essential role in making the works in question available?” should be addressed.

3. Critically analyse the outcome of the PRCA v NLA litigation? In particular, what do you make of the observation that ‘the Supreme Court and the CJEU only had a nut to crack in this case. The lure of making a policy decision caused them to take a wrecking ball to it.’

To answer this question I would expect the student to discuss in order:

1. The decision of the Chancery Division and the High Court in the Meltwater case. Explaining clearly what the issue in the case is. It is not the use of the content by Meltwater, that is covered by a Web Developer License. It is the following of hyperlinks by Meltwater customers which is claimed to be illegal without a license.
2. Explain the temporary copy issue – it is the making of RAM copies and Screen Display copies which leads to the claim that end users need a separate license.
3. Discuss Article 5 of the Copyright and Related Rights in the Information Society Directive. This seems to give a temporary copying exemption – why did Proudman J find it did not?
4. Discuss Infopaq International v Danske Dagblades Forening (Infopaq I). In particular discuss why it seems likely Proudman J. misapplied Infopaq I and why the Court of Appeal should have overruled her.
5. Explain why it seems likely that Football Association Premier League Ltd v QC Leisure and Infopaq International v Danske Dagblades Forening  (Infopaq II) have impliedly overruled the decision of the Court of Appeal.
6. The best students will note that the Supreme Court has ruled in Meltwater and has substantively held in favour of most of the provisions from Premier League and  Infopaq II  while making a reference to the CJEU to ensure a harmonised approach to the interpretation of Art.5.