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  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  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.