On 21 October 2014, the Court of Justice of the European Union (the CJEU) gave its decision in Bestwater, a case that, like the decision in Svensson earlier this year, concerns the question of whether there is an infringement of copyright when a website operator links to or embeds content available on a third party’s website.

Svensson (as we reported in February) established that linking to, or embedding, content is a “communication” and that there will be infringement if that communication is “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”. It also repeated the principle developed in the cases of Airfield and TVCatchup that redistribution via a different technical means to the original communication would constitute communication to a new public.

The question referred in Bestwater was as follows:

Does the embedding, within one’s own website, of another person’s work made available to the public on a third-party website, in circumstances such as those in the main proceedings, constitute communication to the public within the meaning of Article 3(1) of Directive 2001/29/EC, even where that other person’s work is not thereby communicated to a new public and the communication of the work does not use a specific technical means which differs from that of the original communication?

In Bestwater, the answer to the question posed seems self-evident. The question asks that – even where there is no “new public” and no different technical means – will embedding be a “communication to the public”? Svennson had already decided that, in those circumstances (i.e. where there is no “new public”), there is no communication to the public. Unsurprisingly therefore, the court agreed, holding that embedding alone is not a communication to the public, where there is no “new public” or no new technical means is used. Indeed, the court thought the answer to the question was so clear from the case law that a full judgment was not necessary.

Nevertheless, in the absence of an official English translation of the judgment, some commentators have suggested that the case is authority for the proposition that linking to any freely-available content, even if not authorised by the rightholder (for example, pirated content), will not be an infringement. However, this ignores the definition of a “new public” in Svensson, which clearly states that the authority of the rightholder is key. In any event, the CJEU does seem only to say in Bestwater that linking to freely available content will not be communication to a “new public” where the copyright owners have allowed the original communication. It follows that linking to or embedding to content that was originally posted without the authorisation of the right holder should constitute infringement.

In these types of decisions, it should always be remembered that the CJEU is called upon to answer specific questions of law asked by national courts, not adjudicate on the facts. The question in this case was specifically expressed as subject to the assumption that there was no “new public”, so it cannot be correct that it should be interpreted as re-examining the principle of what will constitute a “new public” or overturning the principle that the authorisation of the rightholder is key, as set out in Svensson. This is especially the case since in Bestwater there was no detailed judgment and no detailed re-examination of the concept of a new public, because the CJEU considered the answer to the questions asked could be derived from its own prior rulings.

The issue of providing access to unauthorised content and the application of Svensson has, however, already been considered by the English courts in two s.97A “blocking injunction” applications this year. In Paramount v Sky (No. 2), the websites in question did not host the film content to be protected, but linked to it, while in the very recent BPI v Sky the websites operated as torrent indices, assisting users locate content elsewhere. In these cases, Mr Justice Henderson and then Mr Justice Arnold both found infringement in circumstances where the service in question was facilitating access to works which are generally accessible via the internet (but where the copyright owner had not consented to them being made freely available), after considering Svensson. This, it is suggested, is the correct approach and is consistent with the “new public” concept formulated by the CJEU in recent cases and, in particular, the relevance of the authorisation (or lack thereof) of the copyright owner.

Patrick Schwarzbart