Martin HusovecIn February this year, the Czech Supreme Court ruled that a mere posting of an embedded link that links to copyright-protected material, must be regarded as a communication to the public and therewith as a direct copyright infringement. The Court was either unaware of pending cases in Luxembourg, or too impatient to wait for the CJEU. Paradoxically, whatever the response of CJEU in BestWater C-348/13 will be, the Czech court cannot be said to be wrong with regard to the direct infringement issue.

A few weeks ago, the Czech Constitutional Court (III. ÚS 1768/13) rejected a constitutional complaint of a young man, who was found guilty of copyright infringement by all court instances, including the Czech Supreme Court. His criminal conduct consisted of operating a website and posting embedded links to pirated movies that were hosted elsewhere. Although the courts gave him a conditional prison sentence of 5 months, he will not have to serve it, as ex-president’s Klaus’s controversial mass amnesty annulled it. The young man will now most likely face “only” civil litigation from the right holders, who will try  to collect the “damages” of two and half million unauthorized downloads, that he is said to have caused with the embedded links.

The Supreme Court (8 Tdo 137/2013) upheld the lower courts decisions, arguing that posting an embedded  link amounts to a communication to the public of the linked to works. The Court relied solely on the most influential Czech copyright commentary, written by prof. Telec and dr. Tůma. Following their opinion, the Court concluded that embedded linking always equals a direct use of a work. Thus, the Court didn’t take the context of EU-law or other, (conflicting) common arguments or practices of other Member States, into consideration. The court did not even think of the social and economic consequences that its decision might have.

This is even more striking if one realizes that the Court wasn’t forced to even touch this controversial issue. From the facts of the case, it was clear that the young man would already be liable for intentionally aiding and abetting infringement of others, even if he didn’t communicate the works to the public himself. He wouldn’t be able to escape liability anyway.

But the Czech Supreme Court was ready to do even more, if needed. Similarly to the German Federal Supreme Court (BGH), that, in its earlier referral to CJEU, insinuated that embedding videos may be a yet “unnamed right of exploitation” within the scope of Art. 15(2) Copyright Act, the Czech court noted that “unauthorized interference with the legally granted rights can be done by a whole set of different kinds of acts, therefore it is not possible to set a definition that would outline them, or to determine clearly how such acts are carried out”. Eventually, due to the classification as communication to the public, the Court refrained from “creating” new exploitation rights outside of the InfoSoc framework.

What remains is the question whether labeling the different uses of a work is becoming obsolete for the digital world. After all, the struggle that the CJEU seems to be having with its own case-law about ‘communication to the public right’ may give us certain clues (wait, did you just say that only sometimes there have to be a “new public” (§ 38, ITV) and that only sometimes the profit making nature matters (§ 88, SCF) – great test!), but all these doctrines on categories like distribution, copying, communication to the public are becoming rather useless, when national courts start to extend the existing catalog of rights, relying on slippery justifications of the individual case at hand.

After all, regardless of whether you side on embedded links with the ALAI or the European Copyright Society, one has to admit that the idea of clearly defined exclusive rights of an (online) author, is closer to a myth than a reality. And the most ironic is that, if the CJEU will take any of these two positions or some middle position, things might just get worse anyway, as a CJEU ruling won’t preempt national courts from adopting  “unnamed rights” [1] and further fragmenting the landscape of exclusive rights in the EU.

[1] Explicit general clause of exploitation rights exists in § 12(5) of Czech, § 15(1) of German and § 18(2) of Slovak Copyright Act.



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One comment

  1. DearMartin,

    Thank youvery much for your article!


    Firstyou wrote, that the Czech Supreme Court consider that posting an “embedded link”must be regarded as a communication to the public. That’s exactly what the
    French Court could say. (for intsance, TGi, Nanterre, 25 mars 2010 or TGI,Paris, 18 juin 2010). That means that the debate is focused on “thecommunication to the public”. In Germany, whereas, the debate dealing with the
    qualification of a “embedded link” is focused on the “reproduction right” (See,Schricker, §16 Rn. 24 or contra, Wandkte/Bullinger §16 Rn.20f or Fromm/Nordemann/Dustmann§16 Rdnr.30). So these different approaches are very funny!

    AsI understand, there is also another Case from the CJEU dealing withlinks/embedded links: it’s the case C-466/12 (Svea Hovrätt).

    Then,I’m not sure, if I really understand you. Which case do you mean, when you write about the BGH Case? Do you speak from the BGH Beschluss (16. Mai 2013), “Die
    Realität”? Because when you write about the embedded videos, you speak about framing and not about embedded link. I’m not sure, if you can do an analogy between these two cases.

    Of course, it’s true, that the Definition of the “communication to the public” is not clear. As I understand the CJEU, we have two different Definition of the communication to the public.

    On the one hand, a Definition for the InfoSoc Directive and on the other hand a Definition for the Directive EEC. (That means, that the cases of March 2012 –
    PPL and SCF are very special Cases) The question is: Is it really good, to have two different definitions? The Court wants to harmonize the Definition of the
    right, and now we have two different Definitions!

    And with the ITV Case “confirm” a specific Definition of the “communication to the public” for the InfoSoc Directive.

    And Yes, I do agree, when you say that “labeling the different uses of a work is becoming obsolete for the digital world”. But what does it mean? It
    means, that we have two different
    Copyright: one Copyright for the digital
    World and one for the analog World.
    Do you really want this? Two Copyright: It means that the Technik is “more”important than law. Is an e-book different from a book? Do you really want another “statute” for a same “Work” if only the “medium” is different and not the “content”? Copyright
    has something to do with content, not with “container”. Law is “Technology Neutral”.

    So this is my these: we don’t
    need the “Summa diviso” of the German
    law (Verwertung in Körperlicher Form and
    Verwertung in unkörperlicher Form). Ok! Imagine, you put all the rights in
    one Bag for the digital world. What will happen? You can label the different uses in the Contract!
    (See DGRI Tagung, in Bonn) That is exactly what happens in France. There is a synthetic
    Concept of the Rights, but in the Contract, you can do what you want!!!

    What we can say, is that the “Harmonization” of the directive is very superficial:

    1- First Problem: “Harmonization” with a Directive and no decree

    You can adopt “unnamed rights” on the national level:
    that’s clear. It’s wanted in Europe from the political point of view! “Urheberrecht ist das Recht des Urhebers”. (You cannot make this joke in English with Copyright!!).
    So on the European level, the political wishes is precisely to protect the author, not the internet Users (even if the Internet Users can also be an author, Pro-sument etc). So I understand that you want to protect the internet

    You always have more rights on the national level than
    on the European level. Moreover the
    Directive only gives you a kind of “Direction”. The countries are free to transpose the
    Directive. In France, on the National Level, you don’t have a distribution right (!) and you don’t have a “right of communication to the public”!! The InfoSoc
    just harmonized a part of the rights, not all
    the rights.

    2- Second Problem: no Harmonization
    of the Exceptions

    I have a question: In other to make the “Copyright”
    law more flexible, do we need to reduce the coverage of the right or to introduce more exceptions? (Remark: in
    both case, you have to adapt and write a new Directive!!)

    For instance, the coverage of the “reproduction right”
    is very large in the infoSoc. We also have the Problem, that exceptions are not harmonized (facultative harmonization).To resume: the rights have already the coverage the national Court wants to give them!!! (Even if you cannot have one exception more than in the infoSoc on the national level).

    Third Problem:

    Relationship Contract/and Law. An analytic law is good for the security. A synthetic law is good for the flexibility. The Problem is: who has the power to decide?
    The legislator or the judge?

    My Problem is: what Copyright law for the 21 century? It’s a political Problem! We have a difficult challenge: security on one hand and flexibility, adaptation
    to the new Technologies on the other hand.

    To my mind: it’s gut that the CJEU try to introduce “autonom notion” in order to explain the concepts behind
    the words. The Problem is, that the
    Court doesn’t interprete only the words of the directive but the CJEU is creating law! Competence of the CJEU?
    (That’s not a Copyright Problem). I think,
    that the InfoSoc Directive is too old (2001). Already 12 years old!!! The European Legislator has to work!

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