Posts tagged " copyright infringement "

CJEU ruling – reselling of a computer program to a new acquirer

26 October 2016

The initial acquirer of a copy of a computer program, accompanied by an unlimited user licence, may resell that copy and his licence to a new acquirer. However, where the original material medium of the copy that was initially delivered has been damaged, destroyed or lost, that acquirer may not provide his back-up copy of that program to that new acquirer without the authorisation of the rightholder.

In Latvia, criminal proceedings have been brought against Mr Aleksandrs Ranks and Mr Jurijs Vasiļevičs, who are charged with, inter alia, the unlawful sale, as part of a criminal organisation, of objects protected by copyright and intentional unlawful use of another person’s trade mark. They are alleged to have sold various copyright-protected computer programs published by Microsoft (such as versions of the Microsoft Windows software and the Microsoft Office suite) on an online marketplace in 2004. It is estimated that they sold more than 3 000 copies of programs and the material damage caused to Microsoft by the activities of Mr Ranks and Mr Vasiļevičs has been evaluated at €265 514.

In those circumstances, the Rīgas apgabaltiesas Krimināllietu tiesu kolēģija (Criminal Law Division of the Riga Regional Court, Latvia), before which the case has been brought, asks the Court of Justice whether EU Law must be interpreted as meaning that the acquirer of a back-up copy of a computer program, stored on a non-original material medium, may, under the rule of exhaustion of the rightholder’s distribution right laid down in an EU Directive, resell that copy where (i) the original material medium of that program, acquired by the initial acquirer, has been damaged and (ii) that initial acquirer has erased his copy or ceased to use it.

In today’s judgment, the Court considers that it follows from the rule of exhaustion of the distribution right that the holder of the copyright in a computer program (in the present case, Microsoft) who has sold, in the EU, a copy of that program on a material medium (such as a CD-ROM or a DVD-ROM) with an unlimited user licence can no longer oppose the subsequent resale of that copy by the initial acquirer or subsequent acquirers of that copy, notwithstanding the existence of contractual terms prohibiting any further transfer.

However, the questions referred concern the resale of the used copy of a computer program, stored on a non-original material medium (‘back-up copy’), by a person who acquired it from the initial acquirer or from a subsequent acquirer.

The Court notes that the directive grants the holder of the copyright in a computer program the exclusive right to do or to authorise the permanent or temporary reproduction of that program by any means and in any form, in part or in whole, subject to the specific exceptions laid down in the directive. The lawful acquirer of a copy of a computer program, placed on the market by the rightholder or with his consent, may therefore resell that copy, provided that that sale does not adversely affect the rightholder’s exclusive reproduction right and that any acts of reproduction of that program are authorised by that rightholder or are covered by the exceptions laid down in the directive.

In that respect, the Court points out that the directive provides that the making of a back-up copy by a person having a right to use the computer program may not be prevented by contract in so far as it is necessary for that use. Any contractual provisions contrary to that rule are to be null and void.

The making of a back-up copy of a computer program is therefore subject to two conditions. That copy must (i) be made by a person having a right to use that program and (ii) be necessary for that use.

According to the Court, that rule, which lays down an exception to the exclusive reproduction right of the holder of the copyright in a computer program, must be interpreted strictly.

It follows that a back-up copy of a computer program may be made and used only to meet the sole needs of the person having the right to use that program and that, accordingly, that person cannot — even though he may have damaged, destroyed or lost the original material medium — use that copy in order to resell that program to a third party.

The Court therefore holds that the directive must be interpreted as meaning that, although the initial acquirer of a copy of a computer program accompanied by an unlimited user licence is entitled to resell that copy and his licence to a new acquirer, he may not, however, in the case where the original material medium of the copy that was initially delivered to him has been damaged, destroyed or lost, provide his back-up copy of that program to that new acquirer without the authorisation of the rightholder.

Source: Court of Justice of the European Union Press Release, No 110/16, 12 October 2016

Wi-Fi network and copyright infringements?

15 September 2016

The operator of a shop who offers a Wi-Fi network free of charge to the public is not liable for copyright infringements committed by users of that network. However, such an operator may be required to password-protect its network in order to bring an end to, or prevent, such infringements.

Mr Tobias Mc Fadden runs a lighting and sound system shop in which he offers access to a Wi-Fi network to the general public free of charge in order to draw the attention of potential customers to his goods and services. In 2010, a musical work was unlawfully offered for downloading via that internet connection. The Landgericht München I (Regional Court, Munich I, Germany), before which the proceedings between Sony and Mr Mc Fadden were brought, takes the view that he was not the actual party who infringed the copyright, but is minded to reach a finding of indirect liability on the ground that his Wi-Fi network had not been made secure. As it has some doubts as to whether the Directive on electronic commerce 1 precludes such indirect liability, the Landgericht has referred a series of questions to the Court of Justice.

The directive exempts intermediate providers of mere conduit services from liability for unlawful acts committed by a third party with respect to the information transmitted. That exemption of liability takes effect provided that three cumulative conditions are satisfied: (i) the provider of the mere conduit service must not have initiated the transmission; (ii) it must not have selected the recipient of the transmission; and (iii) it must neither have selected nor modified the information contained in the transmission.

In today’s judgment, the Court holds, first of all, that making a Wi-Fi network available to the general public free of charge in order to draw the attention of potential customers to the goods and services of a shop constitutes an ‘information society service’ under the directive.

Next, the Court confirms that, where the above three conditions are satisfied, a service provider such as Mr Mc Fadden, who providers access to a communication network, may not be held liable. Consequently, the copyright holder is not entitled to claim compensation on the ground that the network was used by third parties to infringe its rights. Since such a claim cannot be successful, the copyright holder is also precluded from claiming the reimbursement of the costs of giving formal notice or court costs incurred in relation to that claim.

However, the directive does not preclude the copyright holder from seeking before a national authority or court to have such a service provider ordered to end, or prevent, any infringement of copyright committed by its customers.

Lastly, the Court holds that an injunction ordering the internet connection to be secured by means of a password is capable of ensuring a balance between, on the one hand, the intellectual property rights of rightholders and, on the other hand, the freedom to conduct a business of access providers and the freedom of information of the network users. The Court notes, in particular, that such a measure is capable of deterring network users from infringing intellectual property rights. In that regard, the Court nevertheless underlines that, in order to ensure that deterrent effect, it isnecessary to require users to reveal their identity to be prevented from acting anonymously before obtaining the required password.

However, the directive expressly rules out the adoption of a measure to monitor information transmitted via a given network. Similarly, a measure consisting in terminating the internet connection completely without considering the adoption of measures less restrictive of the connection provider’s freedom to conduct a business would not be capable of reconciling the abovementioned conflicting rights.

Source: Court of Justice of the European Union Press Release, No 99/16, 15 September 2016

Links and copyright

15 September 2016

The posting of a hyperlink on a website to works protected by copyright and published without the author’s consent on another website does not constitute a ‘communication to the public’ when the person who posts that link does not seek financial gain and acts without knowledge that those works have been published illegally. In contrast, if those hyperlinks are provided for profit, knowledge of the illegality of the publication on the other website must be presumed.

GS Media operates the website GeenStijl, which includes, according to information provided by that website, ‘news, scandalous revelations and investigative journalism with lighthearted items and wacky nonsense’ and is one of the ten most visited news websites in the Netherlands.

In 2011, GS Media published an article and a hyperlink directing viewers to an Australian website where photos of Ms Dekker were made available. Those photos were published on the Australian website without the consent of Sanoma, the editor of the monthly magazine Playboy, which holds the copyright to the photos at issue. Despite Sanoma’s demands, GS Media refused to remove the hyperlink at issue. When the Australian website removed the photos at Sanoma’s request, GeenStijl published a new article that also contained a hyperlink to another website on which the photos in question could be seen. That site complied too with Sanoma’s request that it remove the photos. Internet users visiting the GeenStijl forum then posted new links to other websites where the photos could be viewed.

According to Sanoma, GS Media infringed copyright. Hearing the appeal, the Hoge Raad der Nederlanden (Supreme Court of the Netherlands) seeks a preliminary ruling from the Court of Justice on this subject. Pursuant to an EU Directive, every act of communication of a work to the public has to be authorised by the copyright holder.1 However, the Hoge Raad notes that the internet is overflowing with works published without the rightholder’s consent. It will not always be easy for the operator of a website to check that the rightholder has given his consent.

In today’s judgment, the Court declares that, in accordance with the directive concerned, Member States are to provide authors with the exclusive right to authorise or prohibit any communication to the public of their works. At the same time, that directive seeks to maintain a fair balance between, on the one hand, the interests of copyright holders and related rights and, on the other, the protection of the interests and fundamental rights of users of protected objects, in particular their freedom of expression and of information, as well as the general interest.

The Court recalls its earlier case-law in accordance with which the concept of ‘communication to the public’ requires an individual assessment, which must take account of several complementary criteria. Those criteria include, first, the deliberate nature of the intervention. Thus, the user makes an act of communication when it intervenes, in full knowledge of the consequences of its action, in order to give access to a protected work to its customers. Secondly, the concept of the ‘public’ covers an indeterminate number of potential viewers and implies a fairly large number of people. Thirdly, the profit-making nature of a communication to the public is relevant.

The Court specifies that its earlier case-law2 concerned only the posting of hyperlinks to works that have been made freely available on another website with the consent of the rightholder, and that it cannot, therefore, be inferred from that case-law that the posting of such hyperlinks would be excluded, as a matter of principle, from the concept of ‘communication to the public’ when the works at issue have been published on the other website without the rightholder’s consent.

As regards that latter situation, the Court emphasises, however, that the internet is of particular importance to freedom of expression and of information and that hyperlinks contribute to its sound operation and to the exchange of opinions and information as well. In addition, it accepts that it may prove difficult, in particular for individuals who wish to post such links, to ascertain whether the works involved are protected and, if necessary, whether the copyright holders of those works have consented to their publication on the internet.

Having regard to those circumstances, the Court holds that, for the purposes of the individualised assessment of the existence of a ‘communication to the public’, it is necessary, when the posting of a hyperlink to a work freely available on another website is carried out by a person who, in so doing, does not pursue a profit, to take account of the fact that that person does not know and cannot reasonably know that that work had been published on the internet without the consent of the copyright holder. Indeed, such a person, does not, as a general rule, intervene in full knowledge of the consequences of his conduct in order to give customers access to a work illegally posted on the internet.

In contrast, where it is established that such a person knew or ought to have known that the hyperlink he posted provides access to a work illegally published, for example owing to the fact that he was notified thereof by the copyright holders, the provision of that link constitutes a ‘communication to the public’. The same applies if that link allows users to circumvent the restrictive measures taken by the site where the protected work is posted in order to restrict the public’s access to its own subscribers.

Furthermore, when hyperlinks are posted for profit, it may be expected that the person who posted such a link should carry out the checks necessary to ensure that the work concerned is not illegally published. Therefore, it must be presumed that that posting has been done with the full knowledge of the protected nature of the work and of the possible lack of the copyright holder’s consent to publication on the internet. In such circumstances, and in so far as that presumption is not rebutted, the act of posting a clickable link to a work illegally published on the internet constitutes a ‘communication to the public’.

In the present case it is undisputed that GS Media provided the hyperlinks to the files containing the photos for profit and that Sanoma had not authorised the publication of those photos on the internet. It appears from the facts, as stated in the Hoge Raad’s request for a preliminary ruling, that GS Media was aware of the illegal nature of that publication and that it cannot, therefore, rebut the presumption that it posted those links in full knowledge of the illegal nature of that publication. Subject to the checks to be made by the Hoge Raad, by posting those links, GS Media therefore effected a ‘communication to the public’.

Source: Court of Justice of the European Union Press Release, No 92/16, 8 September 2016

The posting of a hyperlink does not constitute a copyright infringement

9 April 2016

According to Advocate General Wathelet, the posting of a hyperlink to a website which published photos without authorisation does not in itself constitute a copyright infringement.

Pursuant to an EU Directive, each act of communication of a work to the public has to be authorised by the copyright holder.

Sanoma, the editor of the monthly magazine Playboy, commissioned a photoshoot of Britt Dekker, who regularly appears on television programmes in the Netherlands. GS Media, operator of the internet site GeenStijl, published advertisements and a hyperlink directing viewers to an Australian website where the photos in question were made available without the consent of Sanoma. Despite demands from Sanoma, GS Media refused to remove the hyperlink in question. When the Australian website removed the photos upon Sanoma’s request, GeenStijl published a new advertisement which also contained a hyperlink to another website on which the photos in question could be seen. That site also complied with Sanoma’s request to remove the photos. Finally, internet users who frequent the GeenStijl forum posted new links to other websites where the photos could be viewed.
According to Sanoma, GS Media infringed copyright. Hearing the appeal in cassation, the Hoge Raad der Nederlanden (Supreme Court of the Netherlands) seeks a preliminary ruling by the Court of Justice on this subject. The Hoge Raad notes in particular that, whilst the photos were possible to find before GS Media placed the hyperlink, this was not necessarily easy, with the result that the placement of the hyperlink made it easier to locate them.

In today’s Opinion, Advocate General Melchior Wathelet stresses, first of all, that the request for a preliminary ruling only concerns the hyperlinks on GeenStijl’s website. Copyright infringements arising from the photos being made available on other internet sites are not at issue.

The Advocate General acknowledges that hyperlinks placed on a website greatly facilitate the discovery of other websites, and protected works available on those sites, and as a result offer users of the first website faster and more direct access to those works. However, hyperlinks which lead, even directly, to protected works are not ‘making them available’ to the public when they are already freely accessible on another website, and only serve to facilitate their discovery. The actual act of ‘making available’ is the action of the person who effected the initial communication.
Consequently, hyperlinks which are placed on a website and which link to protected works that are freely accessible on another site cannot be classified as an ‘act of communication’ within the meaning of the Directive. In fact, the intervention of the owner of the site which places the hyperlink, in this case GS Media, is not indispensable to the photos in question being made available to internet users, including those who visit GeenStijl’s website.

In this context, GS Media’s motivation and the fact that it knew or should have known that the initial communication of the photos on other websites had not been authorised by Sanoma or that the photos had not previously been made available to the public with Sanoma’s consent are not relevant.

However, the Advocate General explains that his Opinion is based on the premiss that the photos were ‘freely accessible’ to all internet users on third-party sites. The factual question of whether the intervention of GS Media was indispensable to making the photos available to visitors of GeenStijl’s site is a matter for the Hoge Raad.
For the Advocate General, any other interpretation of the notion of ‘communication to the public’ would considerably impede the functioning of the internet and would infringe one of the principal objectives of the Directive, namely the development of the information society in Europe.

Although the circumstances at issue are particularly flagrant, the Advocate General considers that, as a general rule, internet users lack the knowledge and the means to verify whether the initial communication to the public of a protected work freely available on the internet was done with or without the consent of the holder of the copyright. If internet users risk liability for copyright infringement every time they place a hyperlink to works which are freely accessible on another internet site, they would be much more hesitant to post those links, to the detriment of the proper functioning and very architecture of the internet as well as the development of the information society.

Advocate General’s Opinion in Case C-160/15 GS Media BV v Sanoma Media Netherlands BV and Playboy Enterprises International Inc. and Britt Geertruida Dekker

Source: Court of Justice of the European Union PRESS RELEASE No 37/16 Luxembourg, 7 April 2016

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