Transcript AND „COMMUNICATION TO THE PUBLIC”

BELGISCHE VERENIGING VOOR HET AUTEURSRECHT
BVA - ABA
ASSOCIATION BELGE POUR LE DROIT D’AUTER
The right of communication to the public
Annual conference
Brussels, 15th January 2016
THE CONCEPTS OF ”PUBLIC” AND „COMMUNICATION TO THE
PUBLIC” UNDER THE INTERNATIONAL TREATIES
Dr. Mihály Ficsor,
Member and Honorary President of the Hungarian Copyright Council,
former Assistant Director General of WIPO
PROLOGUE:
A WITNESS TESTIMONY
M. Ficsor, Brussels, 15 January 2016
2
Launching a new WIPO copyright
program in 1985
Geneva, end of May 1985: „retreat” at the Perle du Lac restaurant to determine
WIPO’s copyright agenda for the next decade. Participants: Arpad Bogsch,
Director General; Roger Harbin, Head of Cabinet; Claude Masouyé, Director of
Copyright Department; Mihály Ficsor, Director of Copyright Law Division.
M. Ficsor, Brussels, 15 January 2016
3
Guidance for the interpetation of the
Berne and Rome Conventions
• One of the problems according to Dr. Bogsch: WIPO did not have any
reliable publication or other documents that could have served as a
guidance for the interpretation and application of the Berne and Rome
Conventions.
• There was an old „Guide to the Berne Convention” published in 1978
but, as its Foreword also stressed, it was only intended to be an
introductory publication for developing countries just in the process of
establishing their copyright system and, in accordance with this –as its
Foreword stressed – it had been written is a very simple style. There was
a similar Guide to the Rome Convention published in 1981.
• The Guides had been written by Claude Masouyé.
M. Ficsor, Brussels, 15 January 2016
4
Rude criticisim of the 1978 Guide to the
Berne Convention
• For the „retreat”, Roger Harbin had presented an extremely critical
analysis of the Guide to the Berne Convention full of penciled-in
comments pointing out how superficial it was and how many misleading
statements it contained – according to him.
• On the next slides, see the front page and two typical pages of copy
containing Harbin’s pencilled-in remarks. I received it from Dr. Bogsch
after that, in the first part of 1986, first Masouyé and then Harbin died of
cancer. To differentiate it from my own copy, I wrote on its front page „RH
negative” (of course, not as a reference to the blood group which may the
cause hemolytic disease of newborn babies, but the abbreviation of Roger
Harbin’s name and reference both to his negative opinion on the Guide
and to my negative opinion on his remarks).
M. Ficsor, Brussels, 15 January 2016
5
„RH negative”
M. Ficsor, Brussels, 15 January 2016
6
Examples of R.H.’s overly strong comments
M. Ficsor, Brussels, 15 January 2016
7
Dr. Bogsch protects the old Guide but gives
instructions on a new„academic-style” Guide
•
•
At the „copyright-policy retreat”, Dr. Bogsch protected Masouyé stressing that he
(dr. Bogsch) himself clarified in the Foreword to the Guide that „[the] Guide… is
not intended to be an authentic interpretation of the provisions of the
Convention” and that its „sole aim… is to present, as simply as possible, the
contents of the Berne Convention” as an introductory information for developing
countries in the stage of building out their copyright systems.
Nevertheless, he found it necessary to offer more thorough guidance for the
interpretation of the WIPO-adminsitered Conventions for all Member States. He
deceided that, for this: (i) detailed studies should be prepared using the records of
the various diplomatic conferences as sources of interpretation; (ii) the studies –
along with guiding principles and recommendations – should be submitted to
committees of governmental experts and the competent governing bodies of the
Conventions; (iii) later, all this should lead to the adoption a WIPO Model Law and
(iv) to the publication of a new Guide to be written in an „academic style”
suitable to offer thorough guidance for the interpretation of the Berne and Rome
Convention and a new Glossary to improve the one published in 1980.
M. Ficsor, Brussels, 15 January 2016
8
Sam Ricketson on WIPO’s new program –
Dr. Bogsch on Ricketson’s book
• Sam Ricketson, before the completion of his seminal book on the Berne
Convention published in 1986, visited WIPO (see his „Aknowlegments”),
inter alia, to be informed of the Organization’s copyright program and
later he characterised it in his book as WIPO’s „guided development”
progam (page 919).
• When he received a copy of the book, Dr. Bogsch expressed agreement
with the methodology used by Sam Ricketson for the interpretation of
the the Convention. Namely, that he had strictly applied Articles 31 and
32 of the Vienna Convention on the Law of Treaties – in spite of the fact
that the last Act of the Convention was adopted in 1971 before the entry
into force of the 1969 Vienna Convention (in 1980) – and that he clearly
separated the the duly quoted sources of interpretation from the mere
comments expressing his views. He instructed us both the studies and
the new Guides must be prepared in that way.
M. Ficsor, Brussels, 15 January 2016
9
„Guided development”; TRIPS, WCT – WPPT;
new Guide and Glossary (1)
• From 1985 to 1988, a great number of studies have been prepared,
considered and – with some comments and modifications – approved,
first, by Committees of Governmental Experts set up by the competent
governing bodies of WIPO and, later, also by those bodies themselves (in
particular by the Executive Committee of the Berne Union and the
Intergovernmental Committee of the Rome Convention).
• In 1989 the preparation of a draft Model Law on Copyright began and it
and was already in a relatively advanced stage when, due to the TRIPS
negotiations and the beginning of the preparation of what became later
the WCT and the WPPT, it was set aside and finally abandoned.
M. Ficsor, Brussels, 15 January 2016
10
„Guided development”; TRIPS, WCT – WPPT;
new Guide and Glossary (2)
• The new complex WIPO „Guide to the Copyright and Related Rights
Treaties Administered by WIPO” – written in an „academic style” as
originally requested by Dr. Bogsch – was only published in 2003 (with
detailed Guides to the Berne, Rome, Phonograms and Satellite
Conventions and the WCT and WPPT with references also to the relevant
provisions of the TRIPS Agreement). The book – which since then has
been translated and published by WIPO also in the other official
languages of the Organization – also includes a new „Glossary of
Copyright and Related Rights Terms”.
• In the new Guide and Glossary, the treaty provisions has been
interpreted in accordance with the Vienna Convention on the Law of
Treaties (in particular its Article 31 and 32) duly reflecting the relevant
findings approved by competent WIPO bodies.
M. Ficsor, Brussels, 15 January 2016
11
M. Ficsor, Brussels, 15 January 2016
12
The old and new Guides –
different objectives, different styles
The sources of
interpretation were
not indicated in the
old (1978 and 1981)
WIPO Guides and
they were not
quoted; only brief
descriptions were
offered of their
contents „as simply
as possible” – in
accordance with the
objective of the
publication (general
introduction for
developing
countries).
A page of the new Guide with
some of the many endnotes
M. Ficsor, Brussels, 15 January 2016
The new (2003)
WIPO Guides had
been written – as
Dr. Bogsch wished:
in and „academic
style” – by quoting
the sources of
interpretation of
the treaty norms
with a great
number of
endnotes – since
the objective of the
publication was
different than 25
and 22 years
before.
13
THE CONCEPT OF „PUBLIC”
M. Ficsor, Brussels, 15 January 2016
14
No definition in the international treaties
The international treaties do not contain any specific definition of “public”
or its antonym “private”. This is so despite the fact that it depends on the
meaning of these concepts whether or not an act of “public” performance or
communication “to the public” takes place. It is true that, in the earlier
stages of the TRIPS Agreement, there were some proposals to define the
concept of “public”, but no such definition has been included in the final
text of the Agreement.
M. Ficsor, Brussels, 15 January 2016
15
The concept of „public” in the CJEU’s
preliminary rulings (as summed up in SCF)
Paragraphs 84 and 85 of the SFC judgment (Case C-135/10) seems to be a good
summary of the concept of „public” under the CJEU case law:
84…[T]he Court has held that the term ‘public’ within the meaning of Article 3(1)
of Directive 2001/29 refers to an indeterminate number of potential listeners,
and, in addition, implies a fairly large number of persons (see, to that effect,
Case C-89/04 Mediakabel [2005] ECR I-4891, paragraph 30; Case C-192/04
Lagardère Active Broadcast [2005] ECR I-7199, paragraph 31, and SGAE,
paragraphs 37 and 38).
85 As regards … the ‘indeterminate’ nature of the public, the Court has
observed that, according to the definition of the concept of ‘communication to
the public’ given by the WIPO glossary, which, while not legally binding, none
the less sheds light on the interpretation of the concept of public, it means
‘making a work … perceptible in any appropriate manner to persons in general,
that is, not restricted to specific individuals belonging to a private group’.
(Emphasis added.)
M. Ficsor, Brussels, 15 January 2016
16
Mediakabel/Lagardère:
partial definition of „public” (1)
•
Relevant paragraphs:
26 By Question 1(b), the national court asks essentially what are the criteria for
determining whether a service constitutes ‘television broadcasting’ within the
meaning of Article 1(a) of Directive 89/552 or ‘communication services providing
items of information … on individual demand’ referred to in the same article…
28 A service constitutes ‘television broadcasting’ if it consists of initial
transmission of television programmes intended for reception by the public…
30 Next, the service in question must consist of the transmission of television
programmes intended for reception by the public, that is, an indeterminate
number of potential television viewers, to whom the same images are
transmitted simultaneously….
32 [A] pay-per-view television service, even one which is accessible to a limited
number of subscribers,… cannot be regarded as being provided on individual
demand. Consequently, it comes within the concept of ‘television broadcasting’…
[Emphasis added.]
M. Ficsor, Brussels, 15 January 2016
17
Mediakabel/Lagardère:
partial definition of „public” (2)
• Mediakabel: Directive 89/552 is on administrative aspects of television
broadcasting; not on copyright or related rights. Although some of its
provisions refer to European works – but only in regard to „quotas” of
such works in television programs. It contains provisions on such issues as
television advertisement and sponsorship, protection of minors and right
to reply.
• Nevertheless, „indeterminate number of television viewers” is a suitable
definition of „public” also in regard to the right of broadcasting (see the
1947 Brussels Diplomatic Conference simply referring to the ITU Radio
Regulation). (Article 8 of WCT also has made it clear that it is a form of
„communication to the public”.)
• Indeterminate number is not necessary unlimited number. Members of
the public may be dispersed in private home and actual reception by
them is not a condition of their being formed as „public”.
M. Ficsor, Brussels, 15 January 2016
18
Mediakabel/Lagardère:
partial definition of „public” (3)
• Mediakabel included only a partial definition of „communication to the
public”. It was suiteable for broadcasting but not for all kinds of
communication to the public.
• Lagardère: just reference to the Mediakabel definition: „inditerminate
number of viewers” as a matter of „established case law”.
• However, Lagardère was already about the right of broadcasting under
the Rental, Lending and Related Rights Directive (92/100/EEC) and the
Satellite and Cable Directive (93/83/EEC).
M. Ficsor, Brussels, 15 January 2016
19
SGAE – „fairly great number”
SGAE was on the application of the Information Society (Copyright)
Directive (2001/29/EC) for communication to the public by means of
television sets installed in hotel rooms (emphasis added):
37 The Court has held that … the term ‘public’ refers to an indeterminate
number of potential television viewers (Case C-89/04 Mediakabel… and
Case C-192/04 Lagardère Active Broadcast…).
38 In a context such as that in the main proceedings, a general approach
is required, making it necessary to take into account not only customers
in hotel rooms, such customers alone being explicitly mentioned in the
questions referred for a preliminary ruling, but also customers who are
present in any other area of the hotel and able to make use of a
television set installed there; … also… that, usually, hotel customers
quickly succeed each other. As a general rule, a fairly large number of
persons are involved, so that they may be considered to be a public…
M. Ficsor, Brussels, 15 January 2016
20
SCF: attempt at qualitative definition with
reference to „the WIPO Glossary”
•
Let us quote SCF again: „As regards … the ‘indeterminate’ nature of the public,
the Court has observed that, according to the definition of the concept of
‘communication to the public’ given by the WIPO glossary, which, while not
legally binding, none the less sheds light on the interpretation of the concept
of public, it means ‘making a work … perceptible in any appropriate manner to
persons in general, that is, not restricted to specific individuals belonging to
a private group,” (Emphasis added.)
•
On the basis of the quotation, it is clear that this was a reference to the old
(1980) WIPO Glossary (replaced in 2003 with a new WIPO Glossary). However,
the old Glossary also contained further clarification of the concept in the
definition of „public performance”: „’public’ is what goes beyond what
corresponds to usual ‚domestic’ use” (much narrower than „private group”
similar to „family and its closest social acquaintances” in the new Glossary).
M. Ficsor, Brussels, 15 January 2016
21
That old Glossary is
not „the” WIPO Glossary anymore
•
The CJEU obviously did not know that there is now a new WIPO Glossary to
shed light to copyright and related rights concepts. Neither about the fact
that after the 1980 publication of the old Glossary, during the „guided
development” period, competent bodies of WIPO dealt with the relevant
interpretation issues and the definitions in the new Glossary now also reflect
the decisions by those bodies.
•
If the CJEU had known about the new Glossary, it either would have referred
to it or, at least, it would have given reasons for which it had considered a
1980 Glossary to reflect WIPO’s position rather than a 2003 Glossary.
•
For the lack of availability of up-to-date information, the CJEU cannot be
blamed. The parties and other participants should have taken care of this.
(Do the current provisions on preliminary rulings offer guarantees of
availability of full information?)
M. Ficsor, Brussels, 15 January 2016
22
Concept of „public” in the new WIPO Glossary
The new WIPO Glossary „sheds light” to the concept of „public” in this way:
‚1. “The public” is a group consisting of a substantial number of persons
outside the normal circle of a family and its closest social acquaintances.
It is not decisive whether the group is actually gathered in one place; the
availability of works or objects of related rights for the group suffices…
2. As an adjective in reference to an act, “public” (such as performance or
recitation) means that the act is performed in the presence of the public,
or at least at a place open to the public.’ (Emphasis added.)
M. Ficsor, Ankara, November 20, 2015
23
The concept of „public” in national laws
National laws tend to be in accordance with the definition in the new WIPO
Glossary.
• Article L 122-5-1 of the French Intellectual Property Code defines public
performance as what is not private, and private is what remains within
the circle of a family.
• Section 101 of the US Copyright Act contains this definition:
‚To perform or display a work ‘‘publicly’’ means—
… to perform or display it at a place open to the public or at a place
where a substantial number of persons outside of a normal circle of a
family and its social acquaintances is gathered.’ (Emphasis added.)
M. Ficsor, Ankara, November 20, 2015
24
THE CONCEPT OF
„COMMUNICATION
TO THE PUBLIC”
M. Ficsor, Brussels, 15 January 2016
25
International copyright treaties and the
concept of „communication to the public”
•
No explicit definition in the Berne Convention, but obviously, where the
Convention provides for a right of communication to the public , that right – in the
absence of an exception – must be applied in all cases where „communication”
takes place and it is made „to the public” (see above).
•
Implied definitional elements in Article 8 of the WCT (emphasis added):
„Without prejudice to the provisions of Articles 11(1)(ii), 11bis(1)(i) and (ii),
14(1)(ii) and 14bis(1) of the Berne Convention, authors of literary and artistic
works shall enjoy the exclusive right of authorizing any communication to the
public of their works, by wire or wireless means, including the making available
to the public of their works in such a way that members of the public may access
these works from a place and at a time individually chosen by them.”
Broadcasting and interactive „making available” are covered (the „umbrella
solution” with the possibility of implementation through the right of distribution is
not dealt with in this presentation).
„Public communication” of broadcast works (Article 11bis(iii)) is not covered.
•
•
M. Ficsor, Brussels, 15 January 2016
26
Public communication of broadcast works
The WIPO Glossary on „public communication”:
1. The term “public communication” is used in Article 11bis(1)(iii) of the Berne
Convention, which provides that the owners of copyright enjoy the exclusive right of
authorizing “the public communication by loudspeaker or any other analogous
instrument transmitting, by signs, sounds or images, the broadcast of the work.” The
use of this term, rather than the term “communication to the public,” is appropriate,
since this act does not involve the transmission of the work to another place: it is an
act carried out in a place where the public is or may be present, and, in that sense, it
is similar to “public performance” and to ''public recitation.” It means the reception
of the broadcast in a way that it becomes audible and/or visible to those who are
present and correspond to the concept of “(the) public
2. The term differs from the expression “communication to the public,” since in the
case of the latter, those to whom works or objects of related rights are transmitted for
reception, and who correspond to the concept “the public,” are at different places.
(Emphasis added.)
M. Ficsor, Ankara, November 20, 2015
27
Agreed statement concerning
Article 8 of the WCT
„It is understood that the mere provision of physical facilities for enabling or
making a communication does not in itself amount to communication within
the meaning of this Treaty or the Berne Convention.” (Emphasis added.)
• Included as a result of intensive lobbying of ISPs. It was accepted by the
delegations since it stated what was obvious: who only provides facilities
to others to communicate, does not communicate (and thus may have
contributory liability). During the informal negotiations, reference was
made to providing antenna to broadcasters which had never been
regarded broadcasting.
• Thus, it was regarded as an issue left to contributory liability.
• (To be discussed further in another presentation.)
M. Ficsor, Brussels, 15 January 2016
28
Communication to the public under copyright + public
performance under copyright = communication to the public
under related rights
• Definition of „communication to the public” in Article 2(g) of the WPPT:
(g) “communication to the public” of a performance or a phonogram
means the transmission to the public by any medium, otherwise than
by broadcasting, of sounds of a performance or the sounds or the
representations of sounds fixed in a phonogram [like „communication to
the public” under copyright]. For the purposes of Article 15,
“communication to the public” includes making the sounds or
representations of sounds fixed in a phonogram audible to the public
[like „public performance” under copyright]. (Emphasis and, in square
brackets, comments added.)
• Although here a right to remuneration, and in the case of copyright,
exclusive rights are involved, in respect of the concepts of the acts
involved, the same applies as in the case of copyright.
M. Ficsor, Ankara, November 20, 2015
29
The CJEU’s „new public” theory (1)
• The “new public” theory, in the SGAE is presented in this way:
„40 It should also be pointed out that a communication made in
circumstances such as those in the main proceedings constitutes,
according to Article 11bis(1)(ii) of the Berne Convention, a
communication made by a broadcasting organisation other than the
original one. Thus, such a transmission is made to a public different from
the public at which the original act of communication of the work is
directed, that is, to a new public.” (Emphasis added.)
• The statement in the second sentence is a non sequitur inference. It is
presented as if it followed from Article 11bis(1)(ii) of the Berne Convention
to which reference is made in the first sentence, but it does not.
M. Ficsor, Brussels, 15 January 2016
30
The CJEU’s „new public” theory (2)
• The second sentence would truly follow from Article 11bis(1)(ii) if it read
in this way: „[a]uthors of literary and artistic works shall enjoy the
exclusive right of authorizing:… any communication to the public by wire
or by rebroadcasting of the broadcast of the work, when this
communication is made by an organization other than the original one
[emphasis added], provided that the transmission is made to a new
public;”
• However, in this provision of the Convention, there is no mention of “a
new public” different from the public to which the original act of
communication of the work is directed. It simply reads as follows:
[a]uthors of literary and artistic works shall enjoy the exclusive right of
authorizing:… any communication to the public by wire or by
rebroadcasting of the broadcast of the work, when this communication is
made by an organization other than the original one”; (Emphasis added)
M. Ficsor, Brussels, 15 January 2016
31
Presentation of the theory in SGAE (1)
„41 As is explained in the Guide to the Berne Convention, an
interpretative document drawn up by the WIPO which, without being
legally binding, nevertheless assists in interpreting that Convention, when
the author authorises the broadcast of his work, he considers only direct
users, that is, the owners of reception equipment who, either personally or
within their own private or family circles, receive the programme. According
to the Guide, if reception is for a larger audience, possibly for profit, a new
section of the receiving public hears or sees the work and the
communication of the programme via a loudspeaker or analogous
instrument no longer constitutes simple reception of the programme itself
but is an independent act through which the broadcast work is
communicated to a new public. As the Guide makes clear, such public
reception falls within the scope of the author’s exclusive authorisation right.”
M. Ficsor, Brussels, 15 January 2016
32
Presentation of the theory in SGAE (2)
„42 The clientele of a hotel forms such a new public. The transmission of the
broadcast work to that clientele using television sets is not just a technical means to
ensure or improve reception of the original broadcast in the catchment area. On the
contrary, the hotel is the organisation which intervenes, in full knowledge of the
consequences of its action, to give access to the protected work to its customers. In
the absence of that intervention, its customers, although physically within that area,
would not, in principle, be able to enjoy the broadcast work.” (Emphasis added.)
•
•
In SGAE, the reference to „new public” did not create any substantial problem,
because the right of communication to the public (since reference was made also
to communication by loudspeakers or analogous instruments in common areas of
hotels, rather the right of public communication) was applied. The problem was
that, later, communication to „new public” was transformed into a definitional
criterion in the „established case” law.
The reference to „the WIPO Guide” to the Berne Convention as a basis of the
„new public” theory had been based on multiple misundertandings.
M. Ficsor, Brussels, 15 January 2016
33
The source of the basic error (1)
Paragraph 11bis.12 of the old Guide read as follows referred to by the CJEU:
„11bis.12. … Just as in the case of a relay of a broadcast by wire, an
additional broadcast is created (paragraph (1) (ii)), so, in this case too,
the work is made perceptible to listeners (or perhaps viewers) other
than those contempleted by the author when his permission was
given... [T]he author thinks of his license to broadcast as covering only the
direct audience receiving the signal within the family circle. Once this
reception is done in order to entertain a wider circle,… an additional
section of the public is enabled to enjoy the work and it ceases to be
merely a matter of broadcasting. The author is given control over this new
public performance of his work.”
M. Ficsor, Brussels, 15 January 2016
34
The source of the basic error (2)
One of the great number of
„negative” criticisms by „R.H.”
concerned paragraph 11bis.12.
M. Ficsor, Brussels, 15 January 2016
35
The source of the basic error (3)
• At the „retreat” „R.H.” stressed that this comment may be understood as
to suggest that for the applicability of the right of communication to the
public a „new public” would be needed which would be in crystal-clear
conflict both with the text and with the negotiation history of the
Convention as reflected in the records of the Diplomatic Conferences .
• Claude Masouyé reponded that, of course, he did not intend to suggest
such kind of nonsense. Only an example was offered for the developing
country readers in the case of which the retransmission or the public
communication truly resulted in the extension of the audience. Even if,
with certain efforts, it could be misunderstood, it did not follow from the
text that a „new public” would be a condition. He added that this turned
out clearly from the last sentence which did not speak about
performance to a new public but about a new act of communication.
M. Ficsor, Brussels, 15 January 2016
36
The source of the basic error (4)
•
•
•
•
In SGAE, the CJEU did not perform any interpretation of Article 11bis(1) of the
Berne Convention on the basis of its text and negotiation history (the so-called
„preparatory work”).
It based its interpretation exclusively on the old Guide, stressing that a WIPO
publication is to be recognized as a reliable source of interpretation.
It misunderstood the comments exactly the same way as Roger Harbin visualized
it in his „R.H. negative” remarks.
Apparently, there was nobody in the preliminary proceeding to warn
 that it was just a misunderstanding;
 that, if the Court wanted to trust themselves to WIPO documents, they should
have made use of the documents adopted by the competent bodies of the
Berne Union, and
 that, if they still wanted to use only the WIPO Guide to the Berne
Convention, they should not have used the out-of-date one but the new
Guide published 25 years later.
M. Ficsor, Brussels, 15 January 2016
37
Correction in TvCatchup, but…
• In TvCatchup (case C-607/11 ), the Court tried to correct the „new public”
theory through the introduction of the „special technical means” theory
(to mean that the right of communication to the public is applicable even if
it is not to a „new public” but by another special technical means).
• The Berne Convention contradicts the thesis that if communication is
made (to the same public coverage) by the same technical means, no
communication right is applicable. Rebroadcasting is made by the same
techical means as broadcasting and see Article 11bis(1)(ii) on the exclusive
right of rebroadcasting.
• Again, in the given case, the application of the new theory did not create a
substantial problem; it was helpful to apply the right of communication to
the public . However, since it was badly founded, it has brought along with
it the potential of conflicts in other cases (see Svensson).
M. Ficsor, Brussels, 15 January 2016
38
Svensson: honest attempt to „save” both the Internet
and copyright with a further correction (but…)
In Svensson (case C-466/12 ), the application of the „new public” and the
„special technical means” theories would have led to the abolishment of the
right of making available right. The CJEU tried to avoid this and also to „save
the Internet” through introducing the „restricted access” theory.
•
•
•
•
•
The Court qualified using deep linking as an act of communication (making
available) to the public; but considered the internet community as the same
public and online transmissions the same technical means. Thus, under the
judgment, communication to the public does not take place except where the
rightholders restrict access.
Is it formality? It smells like that.
Is it based on a broad application of the implied license doctrine?
What does „restricted access” mean? Only TPM? What about a case where the
rightholder, on the basis of his/her exclusive right of authorization or prohibition,
clearly prohibits hyperlinking to other website (without the application of TPM)?
Would existing exceptions or a new exception be helpful?
M. Ficsor, Brussels, 15 January 2016
39
SCF: A JUDGMENT
WITH MANY QUESTIONS
M. Ficsor, Brussels, 15 January 2016
40
Basic finding in SCF
The operative paragraph of SCF reads as follows:
„The concept of ‘communication to the public’ for the purposes of Article
8(2) of Directive 92/100 must be interpreted as meaning that it does not
cover the broadcasting, free of charge, of phonograms within private dental
practices engaged in professional economic activity, such as the one at issue
in the main proceedings, for the benefit of patients of those practices and
enjoyed by them without any active choice on their part. Therefore such an
act of transmission does not entitle the phonogram producers to the
payment of remuneration.”
M. Ficsor, Brussels, 15 January 2016
41
Conflict with the principles of attribution, subsidiarity
and proportinality? (1)
The SCF judgment may be in conflict with an earlier important judgement in
the Tobaco Advertising case (case C/376/98 Germany v. Parliament and
Council):
„The TFEU does not attribute a competence the EU bodies to harmonize
all the laws in Europe. The decisive provision – Article 114 of the Treaty
– links legislative harmonization to the objective of establishment and
functioning of the internal market. In Tobaco Advertising, the Court
declared that the Treaty does not authorize the EU to harmonize when
there may be only an incidental effect on the internal market. The EU
may intervene to resolve the problems of the differences between
national laws only where such differences are prejudicial to the internal
market in conflict with the free movement of goods, persons, services
and capitals.”
Therefore, the Court anulled Directive 98/34 on tobaco adverstising .
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Conflict with the principles of attribution, subsidiarity
and proportinality? (2)
• The principles of attribution, subsidiarity and proportionality correctly
applied in Tobacco Advertising bind all EU bodies, including the CJEU.
• The adoption of a judgment on the question of wheter dentists in the
center of Turin, in a suburb of Prague, in a small village of Scotland or in a
resort at the Adriatic Sea have to or do not have to pay a small amount of
money for the use of broadcast music in their waiting rooms hardly has
anything to do with the free movement of goods, persons, services and
capitals in the internal market and thus, SCF may be in conflict with the
principles of attribution, subsidiarity and proportionality.
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A typical example of bad quality questions addressed
to the CJEU by a first-instance court (1)
• In the SCF, an Italian first-instance court submitted, inter alia, the
following :
„Does the broadcasting [sic!], free of charge, of phonograms within private
dental practices engaged in professional economic activity, for the benefit of
patients of those practices and enjoyed by them without any active choice
on their part, constitute “communication to the public” or “making available
to the public” for the purposes of the application of Article 3(2)(b) of
Directive 2001/29?”
• It would be difficult to find a more obvious example to show by what
kinds of extremely low quality questions the CJEU is inundated due to
the unfortunate Article 267 of the TFEU.
• If a university student revealed such tragic ignorance about copyright as
what is shown in this question, he definetely would have to fail and to be
sent away to learn and come back later better prepared.
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A typical example of bad quality questions addressed
to the CJEU by a first-instance court (2)
• Normally, in an adequate judicial hierarchy, it is not necessary that the
highest court occupy with such questions derived from brutal ignorance
of a first-instance judge.
• In its judgment the CJEU clarified that using broadcast phonograms in
dentists’ waiting rooms has nothing to do with the right of online making
available to the public and that not Directive 2001/29 but Directive
92/100 applies to such acts.
• At the same time it is strange that the Court has not corrected the
characterization of the dentists’ use of broadcast phonograms as an act
of broadcasting (dentists as broadcasting organizations!).
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Response by the CJEU
The CJEU has given the following answer to the weird question:
„ The concept of ‘communication to the public’ for the purposes of Article
8(2) of Directive 92/100 must be interpreted as meaning that it does not
cover the broadcasting, free of charge, of phonograms within private dental
practices engaged in professional economic activity, such as the one at issue
in the main proceedings, for the benefit of patients of those practices and
enjoyed by them without any active choice on their part. Therefore such an
act of transmission does not entitle the phonogram producers to the
payment of remuneration.”
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Lucrative objective of the communication as a
criterion of communication to the public? (1)
The SCF judgment contains the following surprising statements:
•
•
•
90 [T]he Court has held that the action by a hotel operator by which it gives access to a
broadcast work to its customers must be considered an additional service performed with
the aim of obtaining some benefit, since the provision of that service has an influence on the
hotel’s standing and, therefore, on the price of rooms. Similarly, the Court has held that the
transmission of broadcast works by the operator of a public house is made with the
intention that it should, and is likely to, have an effect upon the number of people going to
that establishment and, ultimately, on its financial results (see, to that effect, SGAE,
paragraph 44, and Football Association Premier League and Others, paragraph 205). […]
97 … [I]t cannot be disputed that, in a situation such as that in the main proceedings, a
dentist who broadcasts phonograms, by way of background music, in the presence of his
patients cannot reasonably either expect a rise in the number of patients because of that
broadcast alone or increase the price of the treatment he provides. Therefore, such a
broadcast is not liable, in itself, to have an impact on the income of that dentist.
99 Consequently such a broadcast is not of a profit-making nature, and thus does not
fulfil the criterion set out in paragraph 90 of the present judgment. [Sic!] (Emphahis added;
the last sentence even in red.)
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Lucrative objective of the communication as a
criterion of communication to the public? (2)
• This is the most fundamental and most dangerous error of the CJEU has
ever falled in.
• There is no provision whatsoever in the international treaties and/or in
the EU directives on such a criterion – „profit-making purpose” of the
concept of communication to the public (and/or making available to the
public).
• It is a completely different matter that the absence of lucrative purpose
may serve as a basis for certain exceptions or limitations or may have an
effect on the level of remuneration.
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Lucrative objective of the communication as a
criterion of communication to the public? (3)
Extract from Article 5 of Directive 2001/29:
„Member States may provide for exceptions or limitations to the rights provided for
in Articles 2 and 3 [on the rights of reproduction and communication to the public] in
the following cases:
(a) use for the sole purpose of illustration for teaching or scientific research, as long as
the source, including the author's name, is indicated, unless this turns out to be
impossible and to the extent justified by the non-commercial purpose to be achieved;
(b) uses, for the benefit of people with a disability, which are directly related to the
disability and of a non-commercial nature, to the extent required by the specific
disability;”
Why might it be the absence of commercial objective as a basis of the application of
an exception to or limitation of the right of communication to the public if, without
such an objective (according to the CJEU) we could speak about any right of
communication to the public?
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Music is not communicated to a public that is not
specially interested in listening to it?
The CJEU does not suggest other and less than this in SCF.
However, in the international treaties and the EU directives, there is nothing
that might suggest that the concept of communication to the public might
depend on the level of interest of the public to which the communication is
made – whether it is interested, not too interested or indifferent. An act of
communication to the public takes place if a work is communicated to the
public. Full stop. The subjective status of the members of the public is
irrelevant.
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Different concepts of communication to the public for
exclusive rights and rights to remuneration ?
The SCF judgment suggests that the concept of communication to the public
is not the same where it is covered by an exclusive right (of authors) as
where it is covered by a right to remuneration (of related rights benefitiaries)
– because, according to the Court, the rights to remuneration are „economic
rights”?
Where is the difference? The exclusive rights are not „economic rights”?
The example of the Bejing Treaty on Audiovisual Performances (BTAP).
Exactly the same definition of „communication to the public” applies for the
right of communication to the public as exclusive right as when it is is
limited to a right to remuneration (see Articles 2(d) and 11).
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CONCLUSIONS AND
SUGGESTIONS
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Conclusions
1.
2.
3.
4.
5.
6.
7.
No judicial activism!
Respect Montesquieu!
Avoid Sisyphus’ fate!
Healthy hierarchy!
No service for stupid questions!
Better informed rulings!
Don’t try to reinvent the wheel!
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THANK YOU FOR YOUR
ATTENTION (IF ANY)
E-mail: [email protected]
Website: www.copyrightseesaw.net
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