Easter rabbits: a fairy tale on communication right

by federicapezza

A famous rabbit, a bunch of half-naked models and the “netizens” society. These are the main characters of the story I am going to tell you today. But before I start, some clarification is required: it’s nothing about Easter nor an adult movie version of Bugs Bunny. Forget the chocolate rabbits and the cartoons.

This story is a different one: it has a starting point, a development and obviously, as the finest of traditions, a big question mark as a conclusion.

Let’s start at the beginning.

Once upon a time, in Copyright Law, the communication to the public right constituted one of the three main internationally recognised rights of the author. This right, which has existed since the Berne Convention, is aimed at rewarding the copyright holder for the public performance of his original work in the theatres.

Until this point, everything was (kind of) right.

But then an innovation occurred. The content could now be communicated to a public situated in a different place at the same time (broadcasting) or even at a different time (making it available on the Internet). Further, on the internet, even the practice of hyperlinking became a new issue.

Nothing was right anymore.

And here we are again with our rabbit. Because one of the main cases concerning hyperlinking deals with the famous Playboy bunny.

In the GS Media case[1] the ECJ court is going to analyse whether or not the defendant, a popular Dutch blog, infringed the communication to the public right by posting links to pictures meant for publication in the Dutch version of Playboy magazine, which had been leaked on an Australian server.

According to the previous Svensson case, the criterion to apply when dealing with “hyperlinking” is the presence of a “new” public, which was not originally considered by the right holder. Thus, the consequence was that every time the content was made freely available or authorised on the internet, given the lack of a new public, there was neither communication nor infringement of the right.

But what happens if the content has not been authorised? Does this amount to infringement?

This is the big question mark that closes our story and that is going to be resolved, hopefully in the upcoming weeks.

On 7th of April, Advocate General Wathelet delivered his opinion in GS Media BV v Sanoma, opining that linking to IP protected subject matter which was uploaded without consent of the right holder would not amount to communication to the public if the material was previously accessible.[2]

Looking ahead to the decision, we can anticipate that a positive outcome would result in an onerous obligation for any website owner using hyperlinks to check the content provided, in order to verify whether or not it has been authorised.

Anyway, let’s just hope this rabbit is jumping in the right direction.

[1] C- 160/15 GS Media

[2] http://curia.europa.eu/jcms/upload/docs/application/pdf/2016-04/cp160037en.pdf

Federica Pezza

Assistant Editor, QMJIP