In the CJEU judgment of Case C-466/12, Svensson v. Retriever Sverige AB, published on 13 Feb. 2014, it was made clear that providing links to copyrighted works on news websites, does not constitute communication to the public. The key analysis of the court is that, according to settled case law, for the defendant’s behavior to be infringing, the communication made by Retriever Sverige AB, must be directed at a new public, i.e. a public that was not taken into account by the copyright holders when they authorised the initial communication to the public.
However, the concept “public” is very vague. Art. 3 of Directive 2001/29 protects authors’ exclusive right of “making available to the public of their works in such a way that members of the public may access them from a place and at a time individually chosen by them”, wherein the public is seen as a whole without any group specification. But is it possible that an author chooses his audience when uploading his works online?
When an author finished writing an article, of course he would like to have all the people in this world as his audience, whereas this rosy dream cannot come true in reality. Theoretically, when an article was posted on an open website without any accessing restrictions, all Internet users could read it. Whereas the public consists of people differing in geographical district, language, age, and interests etc., an author practically could never anticipate who would read his works when they are published online, let alone control who can read. Efforts to partition the potential online readers into “old public” and “new public” will only go in vain. Under this background, is it sensible to distinguish between the different “public” when defining communication to the public?
Maybe it would be more productive to interpret on “making available” in Art.3. The objective result of the clickable links to these journalists’ articles is that, these articles are made available to those net users who would not have read them unless they surfed the original news website. Therefore, the behavior subject of “making available” is the link providers, in stead of authors. Following such an analysis route, infringement could be found to a certain degree, entitling the authors to some compensation.
What really matters in this case is the commercial profit model of modern electronic newspaper. Observing the change of businiess model in the information age from a wider perspective, for numerous business websites, the volume of traffic the website attracts is everything to its business. Nowadays, accommodating the e-commerce trend, many newspapers publish the print edition and online edition simultaneously. Some newspapers require subscribers to the online edition to pay a certain fee for their reading, which has proved to be an unsuccessful and unpopular business model. Online readers like free digests with quality. Thus other newspapers just provide free press articles to online readers, operating on the sponsorship coming from advertisement sponsors. More traffic this news website generates, more money comes in the pocket of the website runners.
If a press article could be visited both from the original news website and by clicking the reference links provided by other websites, the traffic of the original news website would increase, even if websites providing reference links would also get some revenue as free riders. However, if this article was framed or deep linked by other websites, the traffic of the original news website would be diverted and drop. The profit that could have gone to the original news website would go to the other websites. In the latter situation, obvious infringement of copyright and unfair competition simultaneously exist. Yet the former situation is a bit tricky, seemingly legal but disputable. The Svensson case just belongs to the former, which reminds us of the debate over the legitimacy of press aggregators’ practice of “free riding”.
Although German legislators have voted against requiring news aggregators to pay money to newspaper publishers, the dispute does not rest. Once linking to press articles were totally banned, not only would people’s right to free access to information be violated, but also the revenue of news press would drop. Yet it’s a paradox to not provide protection to free news websites against those press aggregators. The implied information sent out by this judgment is that, lack of access restriction measures to visit the news website deprived the authors of their rights to their press articles. However, setting access restrictions on net users goes against the prevalent e-commerce model and trend. In the long run, this judgment will not bring in a win-win outcome for the news press and information service websites. Considering why Google is willing to set up a 60-million-euro fund to boost French digital publishing, we could see the interdependence relation between the two interest camps. Their interests are common rather than opposite.
Nina Xu, visiting Post-doc VU University, dep. TLS, Internet Governance