IP rights and the internet: where the act of making available takes place
Published on 22 Jun 2012 at 12:29 pm.
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Filed under Broadcasting, Internet, Digital rights, Copyright Infringement, Communication.
Author: Tony Ballard
The Advocate General in Football Dataco v Sportradar has proposed (in an Opinion issued 21 June 2012) a solution to one of the unresolved puzzles in copyright law presented by the non-local nature of the internet. He rejects any analogy with broadcasting and its “emission” and “reception” theories with respect to the place where the restricted act of “making available” takes place. He proposes instead that, because of the internet’s unique networked, multi-polar nature, the act of making available is a complex act with a number of components. The restricted act occurs in each country in which any of those components takes place.
The story begins with the first instance judgment of Floyd J in 2010 in which he had to decide where the “making available to the public all or a substantial part of the contents of a database by … on-line … transmission” occurred for the purposes of the Database Directive. Was it where the server was situated? Or where the public were? Or in both locations? He thought it was similar to the debate that had occurred years before in relation to broadcasting, which had been resolved at least so far as EU satellite services were concerned by locating the act of broadcast where the signals are introduced into an uninterrupted chain of communication - the “emission theory”. In relation to the database right, he came to the conclusion that the act of making available by online transmission took place only where the transmission took place - in effect at the server. On appeal, the Court of Appeal referred the question to the Court of Justice.
The A-G’s Opinion on the reference was published on 21 June 2012. He traces the origins of the freedoms of opinion and communication, and their territorial nature, to the Gutenberg revolution when it became possible to disseminate them in print. The model for those freedoms, he says, is readily applicable to broadcasting but not to the internet, which has transformed our notions of time and space in communications. It has given us cyberspace, which has no frontiers or limits. Accordingly the usefulness of employing conceptual constructions formulated in the context of broadcasting is highly questionable. Concepts of “emission” and “reception” are rendered ineffective by the networked configuration of the global internet.
What is required is, he says, a specific construction tailored to the particular characteristics of communication via the internet and of course to the EU legislation, such as the idea of the “intended target” of information on the internet as applied in L’Oréal. That was a trade mark case, and he thought the criterion of the intended target was consistent with the concept of “any form of making available to the public” in the definition of “re-utilisation” in the Database Directive. And, since in an internet context re-utilisation is not usually a single act but a sequence of acts which occur as a result of the actions of individuals located in different territories, the “place” of the re-utilisation is that of each of the acts needed to produce the result comprising the making available of the protected data. On that basis, he has proposed that the Court of Justice should decide that the act of re-utilisation occurred in each EU Member State in which any of that sequence of acts took place.
Whether the Court of Justice will follow the A-G’s Opinion remains, of course, to be seen but it seems likely in light of its judgment, published on the same day as the Opinion, in the Donner case. That was a case concerning the distribution to the public right under Article 4 of the Copyright Directive. It involved an Italian distributor of furniture who had targeted the German market without a licence from the owner of the distribution right in Germany. The Court said that distribution to the public is characterised by a series of acts, from contracting to delivery, which may take place, and therefore infringe, in a number of Member States. A trader would be responsible for his own acts of distribution and also for those of a third party in any Member State where he targeted members of the public in that State and was aware of the actions of the third party. The parallels with the Opinion in Football Dataco seem too close to be accidental.
If then this reasoning is applied generally to the communication to the public right, of which “making available” is part, on the internet it could be a turning point in the online protection and administration of copyright works. On the internet the communication to the public right is likely to be the rights owner’s key financial asset and it is exercised in an environment that is not characterised by traditional boundaries. Just as classical concepts of locality have given way to non-locality in quantum mechanics, so notions of copyright as a national phenomenon, built on the worlds of print, radio and TV, may be giving way to a new order on the internet.