Copyright, Technology and the CJEU: An Empirical Study

Abstract

The framework of rights and exceptions in EU copyright law is often criticised for lacking the flexibility that is necessary in times of rampant technological change. Courts, however, occasionally refuse to abide by the framework’s interpretative constraints, in order to accommodate certain technology-enabled uses. In some cases, the CJEU has adopted flexible readings of the exceptions in question. In other cases, national courts have openly construed the three-step test as an enabling standard, rather than as a restrictive one. Using the relevant case law of the CJEU as its research sample, this article aims to empirically investigate the extent to which European courts are deciding in such a flexible manner and rendering technology-enabled uses to be non-infringing. This study reveals that the number of uses that the CJEU has deemed non-infringing exceeds those that have been held infringing. It shows, moreover, that the CJEU has circumvented interpretative constraints in the majority of these cases. These findings suggest that the existing framework is indeed unfit for times of accelerated technological change, but for a different reason than that commonly thought. The main reason for introducing a greater degree of flexibility in EU copyright law is, somewhat paradoxically, related to legal certainty.

Appendices

Appendix 1: Sampled Decisions and Technology-Enabled Uses

The table below lists the preliminary rulings that make up this study’s sample and the technology-enabled uses the lawfulness of which was assessed by the CJEU in those rulings.

Case no.	Case name	Technology-enabled use(s)
C-5/08	Infopaq	Data capture for news clipping purposes, with printing of text files
C-393/09	BSA	TV broadcasting of GUIs
C-403/08 & 429/08	Premier League	Reproduction via satellite decoders and televisions
C-302/10	Infopaq II	Data capture for news clipping purposes, without printing of text files
C-510/10	TV2 Danmark	Ephemeral reproductions made by independent TV production companies but commissioned by broadcasting organisations
C-406/10	SAS Institute	Reproduction of the functionality of a computer program by means of studying, observing and testing the program, a licence for which was lawfully acquired
C-128/11	UsedSoft	Downloading of a copy of a computer program purchased from the rightholder’s website
C-607/11	ITV Broadcasting	Retransmission via streaming of the works included in a terrestrial television broadcast to subscribers to a television service
C-457/11 to 460/11	VG Wort	Reproductions made by a printer linked to a PC, when the various elements or non-autonomous stages of the process are carried out under the control of the same person
		Reproductions made by a printer linked to a PC, when the various elements or non-autonomous stages of the process are not carried out under the control of the same person
C-466/12	Svensson	Hyperlinking to freely accessible authorised works
		Hyperlinking to authorised works that makes possible the circumvention of access restrictions
C-435/12	ACI Adam	Downloading from unlawful sources
C-360/13	PRCA	Reproductions on a computer screen and in a web cache
C-117/13	Ulmer	Digitisation of works contained in library collections in order to make them available for use by library patrons via dedicated terminals (where the terminals do not allow for a greater number of copies of the given work to be consulted at any one time than the number thereof owned by the library)
		Making works available to library patrons via dedicated terminals which permit the printing out of those works on paper or the storage thereof on a USB stick
C-348/13	BestWater	Embedding freely accessible authorised works
C-325/14	SBS Belgium	Transmission of program-carrying signals to signal distributors via direct injection
C-160/15	GS Media	Hyperlinking to unauthorised works with knowledge of the illegality of the initial upload
		Hyperlinking to unauthorised works without knowledge of the illegality of the initial upload
C-166/15	Ranks & Vasilevics	Making of back-up copies of computer programs for resale purposes
C-174/15	VOB	Lending of digital copies of books (where the lending is carried out by placing the copy on the server of a public library and allowing a user to reproduce that copy by downloading it onto his/her own computer, bearing in mind that only one copy may be downloaded during the lending period and that, after that period has expired, the downloaded copy can no longer be used by that user)
		Lending of digital copies of books with the copies having been obtained from unlawful sources
C-301/15	Soulier & Doke	Digital exploitation of out-of-print books (made by collective management organisations)
C-275/15	ITV Broadcasting II	Immediate retransmission by cable – including, where relevant, via the Internet – in the area of the given initial broadcast of works broadcast on television channels
C-138/16	AKM	Simultaneous, full and unaltered transmission of programs broadcast by a national broadcasting corporation by means of cables in the national territory
		Broadcast by means of a communal antenna installation where the number of subscribers connected to that antenna does not exceed 500
C-527/15	Filmspeler	Sale of a multimedia player with pre-installed add-ons containing hyperlinks to freely accessible websites where unauthorised works have been made available
		Streaming copies of unauthorised works made on a multimedia player

Appendix 2: Classification Examples

For transparency and replicability purposes, I have defined and given examples with regard to the classifications used in examining the sampled decisions.

The first two classifications – “infringing use” and “non-infringing use” – were essential for the answering of the first research question. Detailed knowledge of EU copyright law was sometimes needed in order to understand whether the technology-enabled use in question in a given preliminary ruling was found by the CJEU to be infringing or non-infringing. An inexperienced reader would arguably have trouble extracting that information from the text of some of the sampled rulings. The selected preliminary questions and answers aim to exemplify the classification definitions articulated beforehand.

The second research question turned on the third and fourth classifications: “formalist decision” and “flexible decision”. Context-sensitivity was needed when classifying the CJEU’s approach as formalist or flexible. In some cases, for instance, the Court made reference to the need for a strict interpretation of the relevant exception but ended up doing the exact opposite. A strictly quantitative and non-contextual approach to the decisions would have thus proven unhelpful in answering the question of whether the CJEU is actually abiding by the constraints. For that reason, in addition to giving a definition of each classification and excerpts from decisions that provide relevant examples, I have included an explanation of why I take that decision, in general, and the selected excerpt, in particular, to be an instance of either approach.

2.1 Infringing Versus Non-infringing Use

2.1.1 Infringing Use

2.1.1.1 Definition

A technology-enabled use was classified as infringing when: (i) the use in question was considered to fall within the scope of an EU law provision laying down an exclusive right; and/or (ii) the use in question was considered to fall outside of the scope of an EU law provision laying down an exception (including cases where the national exception that covered the use was deemed to be incompatible with EU law).

2.1.1.2 Examples

C-607/11, ITV Broadcasting

Question: Should Art. 3(1) be interpreted as meaning that it covers a retransmission of the works included in a terrestrial television broadcast:

• where the retransmission is made by an organisation other than the original broadcaster;

• by means of an internet stream made available to the subscribers of that other organisation who may receive the retransmission by logging on to its server;

• on the assumption that those subscribers are within the area of reception of the terrestrial television broadcast and may lawfully receive the broadcast on a television receiver?

The CJEU’s Answer: “… the concept of ‘communication to the public’, within the meaning of Art. 3(1) of Directive 2001/29, must be interpreted as meaning that it covers a retransmission of the works included in a terrestrial television broadcast:

• where the retransmission is made by an organisation other than the original broadcaster,

• by means of an internet stream made available to the subscribers of that other organisation who may receive that retransmission by logging on to its server,

• even though those subscribers are within the area of reception of that terrestrial television broadcast and may lawfully receive the broadcast on a television receiver” (para. 40).

C-435/12, ACI Adam

Question: Should Art. 5(2)(b), read in conjunction with Art. 5(5), be interpreted as precluding national legislation that does not distinguish a situation in which the source from which a reproduction for private use is made is lawful from that in which the source is unlawful?

The CJEU’s Answer: “Article 5(2)(b) of Directive 2001/29 must be interpreted as not covering the case of private copies made from an unlawful source” (para. 41).

“EU law, in particular Art. 5(2)(b) of Directive 2001/29, read in conjunction with paragraph 5 of that article, must be interpreted as precluding national legislation, such as that at issue in the main proceedings, which does not distinguish a situation in which the source from which a reproduction for private use is made is lawful from that in which the source is unlawful” (para. 58).

2.1.2 Non-Infringing Use

2.1.2.1 Definition

A technology-enabled use was classified as non-infringing when: (i) the use in question was considered to fall outside of the scope of an EU law provision laying down an exclusive right; or (ii) the use in question was considered to fall within the scope of an EU law provision laying down an exception (including cases where the national exception that covered the use was deemed compatible with EU law)

2.1.3 Examples

C-466/12, Svensson

Question: Should Art. 3(1) be interpreted as meaning that the provision, on a website, of clickable links to protected works available on another website constitutes an act of communication to the public, where, on that other site, the works concerned are freely accessible?

The CJEU’s Answer: “Article 3(1) of Directive 2001/29 must be interpreted as meaning that the provision on a website of clickable links to works freely available on another website does not constitute an act of communication to the public as referred to in that provision” (para. 32).

C-360/13, PRCA

Question: Should Art. 5 be interpreted as meaning that the on-screen copies and the cached copies made by an end-user in the course of viewing a website satisfy the conditions that those copies must be temporary, that they must be transient or incidental in nature and that they must constitute an integral and essential part of a technological process?

The CJEU’s Answer: “Article 5 of Directive 2001/29 must be interpreted as meaning that the on-screen copies and the cached copies made by an end-user in the course of viewing a website satisfy the conditions that those copies must be temporary, that they must be transient or incidental in nature and that they must constitute an integral and essential part of a technological process, as well as the conditions laid down in Art. 5(5) of that directive, and that they may therefore be made without the authorisation of the copyright holders” (para. 63).

2.2 Formalist Versus Flexible Decision

2.2.1 Formalist Decision

2.2.1.1 Definition

A decision was classified as formalist when the CJEU abided by the constraints that form the EU framework of rights and exceptions, namely when: (i) it interpreted the relevant right(s) broadly; and/or (ii) it interpreted the relevant exception(s) strictly; and/or (iii) it treated the catalogue of exceptions as exhaustive; and/or (iv) it applied the three-step test as a restrictive standard.

2.2.1.2 Examples

C-435/12, ACI Adam

Excerpt: “As regards the scope of those exceptions and limitations, it must be pointed out that, according to the settled case-law of the Court, the provisions of a directive which derogate from a general principle established by that directive must be interpreted strictly (…).

It follows that the different exceptions and limitations provided for in Art. 5(2) of Directive 2001/29 must be interpreted strictly. (…)

Such an interpretation requires Art. 5(2)(b) of Directive 2001/29 to be understood as meaning that the private copying exception admittedly prohibits copyright holders from relying on their exclusive right to authorise or prohibit reproductions with regard to persons who make private copies of their works; however, it precludes that provision from being understood as requiring, beyond that limitation which is provided for expressly, copyright holders to tolerate infringements of their rights which may accompany the making of private copies.” (paras. 22–23 and 31).

“Furthermore, when it is applied, national legislation, such as that at issue in the main proceedings, which does not draw a distinction according to whether the source from which a reproduction for private use is made is lawful or unlawful may infringe certain conditions laid down by Art. 5(5) of Directive 2001/29.

Firstly, to accept that such reproductions may be made from an unlawful source would encourage the circulation of counterfeited or pirated works, thus inevitably reducing the volume of sales or of other lawful transactions relating to protected works, with the result that a normal exploitation of those works would be adversely affected.

Secondly, the application of such national legislation may, having regard to the finding made in paragraph 31 of the present judgment, unreasonably prejudice copyright holders.

It is apparent from the foregoing considerations that Art. 5(2)(b) of Directive 2001/29 must be interpreted as not covering the case of private copies made from an unlawful source.” (paras. 38–41).

Explanation: The CJEU did not merely pay lip service to the canon of strict interpretation. As paragraph 31 shows, in the context of the question it was asked to answer the Court construed the exception laid down in Art. 5(2)(b) in the strictest possible manner. Moreover, the three-step test was understood and actually applied as a restrictive standard.

C-275/15, ITV Broadcasting II

Excerpt: “… in the absence of the consent of the author concerned, such a retransmission is not, as a rule, permitted, unless it falls within the scope of Art. 5 of Directive 2001/29, which sets out an exhaustive list of exceptions and limitations to the right of communication to the public established in Art. 3 of that directive, as recital 32 thereof confirms.

In the present case it is common ground that the retransmission in question in the main proceedings does not fall within the scope of any of the exceptions and limitations set out exhaustively in Art. 5 of Directive 2001/29.

As regards Art. 9 of Directive 2001/29, as the Advocate General noted in points 37 and 38 of his Opinion, it is apparent from that provision, read in light of recital 60 of that directive, that Art. 9 is intended to maintain the provisions applicable in areas other than that harmonised by the directive.

Indeed, an interpretation of Art. 9 of Directive 2001/29 to the effect that it permits a retransmission, such as that at issue in the main proceedings, without the consent of the authors, in cases other than those provided for in Art. 5 of that directive, would run counter not only to the objective of Art. 9, but also to the exhaustive nature of Art. 5, and, consequently, would be detrimental to the achievement of the principal objective of that directive which is to establish a high level of protection of authors.” (paras. 24–27)

Explanation: The CJEU took the closed character of the list of exceptions in Art. 5 rigorously. It refused to interpret Art. 9 of the InfoSoc Directive in a way that would, in practice, amount to the creation of a non-listed exception.

2.2.2 Flexible Decision

2.2.2.1 Definition

A decision was classified as flexible when the CJEU circumvented at least one of the constraints that form the EU framework of rights and exceptions, namely when: (i) it did not interpret the relevant right(s) in the broadest possible manner; or (ii) it did not interpret the relevant exception(s) in the strictest possible manner; or (iii) it created a new exception or “users’ right”; or (iv) it either dispensed with analysis of the three-step test or engaged in a summary assessment thereof.

2.2.3 Examples

C-466/12, Svensson

Excerpt: “…in order to be covered by the concept of ‘communication to the public’, within the meaning of Art. 3(1) of Directive 2001/29, a communication, such as that at issue in the main proceedings, concerning the same works as those covered by the initial communication and made, as in the case of the initial communication, on the Internet, and therefore by the same technical means, must also be directed at a new public, that is to say at a public that was not taken into account by the copyright holders when they authorised the initial communication to the public (see, by analogy, SGAE, paragraphs 40 and 42; order of 18 March 2010 in Case C-136/09 Organismos Sillogikis Diacheirisis Dimiourgon Theatrikon kai Optikoakoustikon Ergon, paragraph 38; and ITV Broadcasting and Others, paragraph 39).

In the circumstances of this case, it must be observed that making available the works concerned by means of a clickable link, such as that in the main proceedings, does not lead to the works in question being communicated to a new public.

The public targeted by the initial communication consisted of all potential visitors to the site concerned, since, given that access to the works on that site was not subject to any restrictive measures, all Internet users could therefore have free access to them.

In those circumstances, it must be held that, where all the users of another site to whom the works at issue have been communicated by means of a clickable link could access those works directly on the site on which they were initially communicated, without the involvement of the manager of that other site, the users of the site managed by the latter must be deemed to be potential recipients of the initial communication and, therefore, as being part of the public taken into account by the copyright holders when they authorised the initial communication.

Therefore, since there is no new public, the authorisation of the copyright holders is not required for a communication to the public such as that in the main proceedings.” (paras. 24–28)

Explanation: The CJEU extended the “new public” requirement – a requirement that acts as a limitation on the scope of the right of communication to the public – to secondary acts of making available. As the case law cited by the Court attests, before Svensson the requirement had only been applied in cases regarding secondary transmissions of broadcasts. In applying, by analogy, the requirement to cases on making available the Court narrowed down the scope of the right of communication to the public in this domain as well. Arguably, the Court’s intention in extending the “new public” requirement was to find an argumentative pathway to exclude hyperlinking to authorised works from the scope of the right of communication to the public.

C-117/13, Ulmer

Excerpt: “… Article 5(3)(n) of the directive limits the use of works, within the meaning of that provision, to the ‘communication or making available’ of those works and thus to acts which fall under the sole exclusive right of communication to the public of works referred to in Art. 3 of that directive. (…)

Such a right of communication of works enjoyed by establishments such as publicly accessible libraries covered by Art. 5(3)(n) of Directive 2001/29, within the limits of the conditions provided for by that provision, would risk being rendered largely meaningless, or indeed ineffective, if those establishments did not have an ancillary right to digitise the works in question.

Those establishments are recognised as having such a right pursuant to Art. 5(2)(c) of Directive 2001/29, provided that ‘specific acts of reproduction’ are involved.

That condition of specificity must be understood as meaning that, as a general rule, the establishments in question may not digitise their entire collections.

However, that condition is, in principle, observed where the digitisation of some of the works of a collection is necessary for the purpose of the ‘use by communication or making available, for the purpose of research or private study, to individual members of the public by dedicated terminals’, as provided in Art. 5(3)(n) of Directive 2001/29.” (paras. 40 and 43–46)

Explanation: By construing Art. 5(3)(n) in conjunction with Art. 5(2)(c), the CJEU enacted what it called an “ancillary right” of public libraries to digitise books from their collections with the purpose of making them available via dedicated terminals without the need for the rightholder’s authorisation. Although the Court was cautious in delineating the scope of this “right” – clarifying that libraries cannot digitise their entire collections – it clearly deviated from the interpretative constraints. The Court’s construction can either be read as: (i) a broad interpretation of the requirement of “specific acts of reproduction” in Art. 5(2)(c), in order to ensure the effectiveness of Art. 5(3)(n), thus ignoring the canon of strict interpretation; or (ii) an outright creation of an autonomous exception, arising from the combination of these two separate exceptions, thus bypassing the exhaustive character of the list.