Communication to the public online: protecting copyright or breaking the Internet?
The exclusive right to communicate a copyright work to the
public under Article 3(1) of the InfoSoc Directive has been considered in
detail by the CJEU. In the context of online communications, the decisions of
the CJEU illustrate a tension between the interests of copyright owners and the
right to access information and freedom of expression online.
The leading CJEU case of Svenssonv Retriever Sverige AB [2014] 2 WLUK 451 concerned hyperlinking to
copyright works online without the specific authorisation of the copyright
owner. The CJEU held that by consenting to the work being freely accessible
online, a rights holder had authorised worldwide communication of that work
provided the subsequent communications took place by the same technical means,
namely online. Any hyperlink to the work was not making the work available to a
new public and so was not copyright infringement.
In the recent case of WarnerMusic v TuneIn Inc [2019] EWHC 2923 (Ch), the High Court considered the right
of communication to the public in the context of a radio aggregator website
which hyperlinked to streams from over 100,000 radio stations worldwide. TuneIn's
website relied on hyperlinks to the streams from the radio stations. The
streams were freely available online and so could theoretically be accessed by
anyone worldwide provided that they knew where to look. However, the TuneIn
site was very different to the type of hyperlinking considered by the CJEU in
Svensson. The TuneIn site allowed its users to access streams either through a
search function, through recommendations based on the user's listening history
or by searching by artist. Warner Music and others claimed that this was
copyright infringement.
TuneIn argued that any decision that went against it would
risk breaking the Internet as hyperlinking, particularly in search engines, is
crucial to the functioning of the Internet. The copyright owners argued that a
decision in TuneIn's favour risked undermining copyright. The Court engaged in
a detailed analysis of the CJEU authorities and determined that the majority of
TuneIn's activities did amount to copyright infringement. The primary reason
for that was that TuneIn was not hyperlinking to a work in the traditional
sense and had a much more active role in recommending radio streams, and therefore
the copyright works, to users.
This article examines the reasoning in the TuneIn case with
reference to the CJEU authorities and asks whether the reasoning does in fact
"break the internet" as suggested by TuneIn.
The article concludes that the nature of TuneIn's activities
was clearly very different to the type of hyperlink relied on by search engines.
Instead of simply linking to a work, TuneIn aggregated, simplified access to
and recommended streams for its users.
However, the court also concludes that by making a work
available in a different territory, a new public is reached. There is
difficulty with this conclusion given the worldwide nature of the internet. A linker
would need to be sure that the rights holder had authorised their work to be published
in the particular territory. Ascertaining the rights holder's intention would
be extremely difficult, particularly where the work is freely accessible online
without any technical territorial restriction. The article suggests how this
could be mitigated to ensure that there is no chilling effect on freedom of
expression or access to information online.
