Mihály Ficsor on Svensson and communications to the public

The Svensson opinion of the CJEU has gained considerable attention. The focus has primarily been on the controversial topic of whether hyperlinks to a work on the Internet should be considered as making the work available and hence be part of the author’s right of communication to the public. However, the opinion also further extends precedents of the CJEU how to determine whether communications are “to the public”. In a seminal paper, Dr. Ficsor the former Deputy Director General of WIPO carefully examines these precedents and points out errors in the opinions. A summary of his paper is below.

It is a widespread opinion that the CJEU’s Svensson judgment has saved the Internet” (because it has maintained the possibility of using hyperlinks). The judgment might also offer chances for rightholders to exploit their works and objects of related rights in the online environment, since it has clarified that the use of “clickable links” qualifies as an act of making available to the public. Unfortunately, those chances are limited because the fundamental problem of the CJEU’s “established case law” on the right of communication to the public and the right of making available to the public – namely, that it is based on the new public” and specific technical means” theories – has not been eliminated.

The “new public” theory – as outlined in the Court’s SGAE ruling – is in conflict with the international treaties and the EU directives. The theory was adopted because the CJEU – recognizing WIPO publications as a reliable source to clarify the concept of communication to the public – relied exclusively on an old 1978 WIPO Guide to the Berne Convention (and misinterpreted it) rather than (i) on the text of the relevant norms and of their “preparatory work”; (ii) on the thorough analysis made in authoritative copyright treatises; (iii) on the interpretation adopted by a series of competent WIPO committees of governmental experts; and (iv) on the new 2003 WIPO Guide reflecting that interpretation (refuting the “new public” theory). In the TVCatchup judgment, the Court tried to correct the “new public” theory by introducing the “specific technical means” theory (according to which the right of communication to the public applies where there is no new public but the communication is made by such new – different – means); but this theory is not in accordance with the international and EU norms either. In the Del Corso ruling, the CJEU got into an even more obvious conflict with these norms by subjecting the application of the right of communication to the public to the criterion of profit-making purposes.

In Svensson, the Court made a further correction in the combined “new public” and “specific technical means” theories by ruling that the right of making available to the public through hyperlinks (clickable links) apply also where rightsholders restrict access and the restriction is circumvented. The chances of rightholders to use licensing methods facilitating due exploitation of their works and objects of related rights depend on how broadly the concepts of “restriction” and “circumvention” are interpreted. However, the criterion of “restriction of access” may also be regarded as a sort of formality to be fulfilled for obtaining protection of the right of making available.

It would be desirable to establish an adequate balance by saving both the Internet and copyright on bases other than the legally defective concepts of “new public”, “specific technical means” and “restriction of access”. Alternatives might be the introduction of a new exception or limitation or the application of a duly developed and finely tuned implied licensing doctrine.

Since the adoption of the “new public” theory was due to the fact that the CJEU had not been appropriately informed on the truly decisive sources of interpretation of the concepts and rights of communication to the public and making available the public, the chain of controversial judgments on these concepts and rights is a further proof that the preliminary ruling system requires revision and correction.

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