The Authors' Take - Communication to the public online: protecting copyright or breaking the Internet?


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.  

[This is an Authors' Take post, which provides readers with an insight into current IP scholarship, featuring preliminary comments and thoughts from authors of articles accepted for publication in forthcoming issues of the Journal of Intellectual Property Law & Practice (OUP). The full text of this contribution will be made available on Advance Access soon]

IP round-ups 2019 now freely accessible and ... accompanied by live webinars!

The Journal of Intellectual Property Law & Practice (JIPLP) is proud and delighted to announce that it is releasing its IP round-ups 2019 in free access format for the next few weeks, also hoping that they will be valuable resources for IP professionals, students, and academics currently away from their physical offices and places of work and study due to the Covid-19 oubreak.

So far, we have published:
Over the next few days, we will also publish: 
  • 3 patent round-ups covering recent developments in, respectively, the UK, China, and the US
  • an enforcement round-up
To accompany the release of our round-ups, we are also organizing free live webinars to discuss the most topical developments in the IP areas covered by our contributors.

Here is the schedule with registration details (please note that registration is mandatory):

Trade Mark Round-Up Live Webinar
When: Wednesday, 29 April 2020, 15:00-16:00 BST
Speakers: Arnaud Folliard-Monguiral (EUIPO), Verena von Bomhard (BomhardIP), Simon Malynicz QC (3 New Square) and Eleonora Rosati (JIPLP)
For details and registration: click here

CJEU Copyright Round-Up Live Webinar
When: Monday, 4 May 2020, 15:00-16:00 BST
Speakers: Lord Justice Arnold (Court of Appeal of England and Wales) and Eleonora Rosati (JIPLP) 
For details and registration: click here

National Copyright Round-Up Live Webinar
When: Wednesday, 6 May 2020, 15:00-16:00 BST
Speakers: Roman Brtka (Bird & Bird), Bettina Kövecses (Bird & Bird), Andrea Jarolímková (Bird & Bird), Eleonora Rosati (JIPLP and Bird & Bird), Phil Sherrell (Bird & Bird), and Benoit Van Asbroeck (Bird & Bird)
For details and registration: click here

UK Patent Round-Up Live Webinar
When: Wednesday, 13 May 2020, 14:00-15:00 BST 
Speakers: Trevor Cook (WilmerHale), Edward Cronan (Hogarth Chambers), Stefano Barazza (JIPLP)
For details and registration: click here

Germany and China Patent Round-Up Live Webinar
When: Tuesday, 19 May 2020, 11:00-12:00 BST 
Speakers: Vanessa Wettner (WilmerHale), Harald Frey (WilmerHale), Kenneth Zhou (WilmerHale), and Stefano Barazza (JIPLP)
For details and registration: click here

US Patent Round-Up Live Webinar
When: Tuesday, 26 May 2020, 14:00-15:00 BST 
Speakers: David Bassett (WilmerHale), TBC
For details and registration: click here

Enforcement Round-Up Live Webinar
When: Thursday, 4 June 2020, 15:00-16:00 BST
Speakers: Carina Gommers (Hoyng Rokh Monegier), Willem Leppink (Ploum), and Marius Schneider (IPvocate and JIPLP)
For details and registration: click here

The Authors' Take - How dynamic is a dynamic injunction? An analysis of the characteristics and the permissible scope of dynamic injunctions under European Law after CJEU C-18/18 (Glawischnig-Piesczek)

How dynamic is a dynamic injunction? An analysis of the characteristics and the permissible scope of dynamic injunctions under European Law after CJEU C-18/18 (Glawischnig-Piesczek)


In its judgment in C-18/18, the Court of Justice of the European Union concluded that injunctions including not only future identical infringements, but also similar infringements to the infringement in the initial proceeding do not constitute a general monitoring obligation and, as such, are not incompatible with the prohibition in Article 15 of the e-Commerce Directive. Such broad-scoped injunctions have been on the rise as they have proven to be an effective enforcement tool to tackle online infringements.

This article focuses in particular on the concept of dynamic, which are ordinary injunctions with two possible dynamic add-ons: a dynamic-content and a dynamic-infringer part. Unlike their general counterparts, the content of a dynamic injunction is subject to change. All this can increase the enforcement possibilities for online infringements, as general blocking injunctions are easy to circumvent by infringers through re-uploading the infringing content to IP addresses or domain names that fall outside the scope of the injunction.

Based on the primary and secondary Union law limitations, the article concludes that dynamic injunctions to prevent infringements of intellectual property rights can include an obligation for an online intermediary to block access to active infringements and to monitor its service for and block access to all future identical infringements to these initial infringements, irrespective of the uploading party. Similar content can be included when the injunction properly defines such content, and the injunction does not effectively oblige an online intermediary to carry out an assessment of the infringing nature of the content. To avoid such an obligation to carry out a legal assessment of the content, and based on the way dynamic injunctions have been successfully applied in several Member States of the European Union, it is recommendable to require similar infringements to be blocked only after a rightholder’s notification. All this would be necessary to prevent the over-filtering of legal content and unduly transfer the burden of identification from the rightholder to the receiving intermediary.


[This is an Authors' Take post, which provides readers with an insight into current IP scholarship, featuring preliminary comments and thoughts from authors of articles accepted for publication in forthcoming issues of the Journal of Intellectual Property Law & Practice (OUP). The full text of this contribution will be made available on Advance Access soon]