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Can I place YouTube documentaries on my website?

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Fluoresce
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PostPosted: Sun Nov 23, 2014 1:07 pm    Post subject: Can I place YouTube documentaries on my website? Reply with quote

Hi.

There are lots of great documentaries and films on YouTube. Many of them have been uploaded to YouTube by YouTube users without the permission of the producers (e.g. the BBC, the Discovery Channel, PBS, the National Geographic Channel, etc.).

Is it illegal to embed these kinds of documentaries and films onto my website?

Note that I will not be hosting the documentaries and films. As I mentioned, they are hosted by YouTube. I will just be embedding them so that people can watch them on my website.

I heard that it's only illegal if I host them myself. Is that true?
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AndyJ
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PostPosted: Sun Nov 23, 2014 3:26 pm    Post subject: Reply with quote

Hi Fluoresce,
So long as by 'embed' you mean include a hotlink on your site, then you are not liable for any infringement, even if the actual video you link to may be infringing.
There have been two recent decisions (referred to as Svensson and Bestwater) in which the Court of Justice of the European Union examined this specific issue, and found that linking and framing did not infringe. You can read more here.
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Last edited by AndyJ on Sun Nov 23, 2014 11:25 pm; edited 1 time in total
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Fluoresce
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PostPosted: Sun Nov 23, 2014 3:59 pm    Post subject: Reply with quote

Hi, AndyJ.

Thanks, once again!

Just to be clear, I meant framing the documentaries and not just linking to them.

Here's an example of a framed YouTube documentary.

The documentary is available to watch on the website by way of a frame, but it is "fed" to the website by YouTube, which hosts the documentary.

If that documentary was uploaded to YouTube by someone without the permission of the producer, I realize that the uploader is breaking copyright law. But, my question is, what about the website that has embedded it?

(I thank you for your help. If you're not the owner of this forum, then you should consider writing a blog on copyright laws. You can even charge a small fee for advice. In fact, take a look at Fiverr.com. There are people charging small fees for similar advice and guidance. Very Happy)
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PostPosted: Sun Nov 23, 2014 11:23 pm    Post subject: Reply with quote

Hi Fluoresce,
Yes, you should still be OK. The facts in the Bestwater case were very similar to what you are talking about and the court specifically dealt with framing. Unfortunately at present we don't have an English version of the Court's finding or I would link to it here. It is worth pointing out that the Court's decision has not met with universal approval in some quarters, but should you be unlucky enough to be challenged over framing, this CJEU decision is a powerful defence.
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PostPosted: Mon Nov 24, 2014 2:52 pm    Post subject: Reply with quote

My understanding of these cases is that the CJEU is saying that linking and framing is legal, if there is no technical transformation, no unauthorised bypassing of access restrictions, the content is legally on the in the first place and there is no "new public".

Fluoresce seems to be asking whether it is legal to link/frame content that is illegally uploaded (ie is unauthorised). The judgement in Bestwater seems to suggest that it is not.

Additionally, the doctrine of "new public" developed by the CJEU has been doubted by many commentators. There is an opinion document from ALAI that sets out its position (www "dot" alai "dot" org/en/assets/files/resolutions/2014-opinion-new-public.pdf) - forum software is blocking posting of URLS.

It is worth noting that even some that do support the linking/framing of content also doubt the "new public" doctrine, including Professor Lionel Bentley.

If you are going to link/frame/embed, then you need to stay abreast of the law in this area, because I would expect it to change over time, by decision of the courts or through legislation.
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PostPosted: Sat Nov 29, 2014 5:28 pm    Post subject: Reply with quote

Well, this is confusing. Very Happy

Is it illegal, then?

Let me make my question clearer . . .

On this documentary website, there are lots of documentaries. The documentaries are hosted by YouTube and are fed to the documentary website by way of a frame. The documentaries were produced by Discovery Channel, the BBC, etc., and many of them were uploaded to YouTube without the authorisation of the production company.

Is the owner of the documentary website breaking the law by framing documentaries that were uploaded to YouTube without the authorisation?
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PostPosted: Sat Nov 29, 2014 6:47 pm    Post subject: Reply with quote

Hi Fluoresce,
Despite Clive B's remarks, the two main CJEU decisions which relate linking, and to a lesser extent framing, quoted above, do support the view that the EU directives on copyright permit linking and framing. In simplified terms, the reasoning is that, because the illegal element - the copying - takes place only on the servers of the primary site (YouTube etc), and in delivering the content to a third party (a visitor to the site) the second site makes no further copy of the work concerned, infringement (if there is any) is confined to the site where the video is hosted.
Clive makes the valid point that the law is far from settled on this whole area, although the ALAI opinion he mentioned focuses on a narrow objection to the Court's finding in the Svensson case, namely whether the audience of the second site can be distinguished in legal terms from the audience of the host site, and whether this can be called a 'new' public. But that argument only applies where the original site is hosting authorised content. The Bestwater case is specifically concerned with a case of linking to unauthorised content (so the point about whether or not a 'new' public is engaged is irrelevant)
Since CJEU decisions cannot be appealed to a higher court, the decisions we have at present represent the best law we have to go on.
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Fluoresce
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PostPosted: Sun Nov 30, 2014 2:04 pm    Post subject: Reply with quote

Thank you, AndyJ, for yet more of your time. I appreciate it a lot. Smile

My understanding of what you're saying is that it is legal to present, by way of a frame, documentaries on my website that have been uploaded to YouTube without authorisation, but that I should also keep an eye on how the law might change.

But what about the Anton Vickerman (SurftheChannel) case?

There are also these cases:

Dancing Jesus music forum

David Rock (TV Links)

Richard O'Dwyer (TV Shack)
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PostPosted: Sun Nov 30, 2014 3:56 pm    Post subject: Reply with quote

Fluoresce, I think you can see the conflict between the existing cases and the position Andy is taking - how can it be illegal to link to unauthorised content, but not illegal to link to unauthorised content!?

This is a direct quote from Svensson (not someone else's interpretation):

Quote:
27. In those circumstances, it must be held that, where all the users of another site to whom the works at issue have been communicated by means of a clickable link could access those works directly on the site on which they were initially communicated, without the involvement of the manager of that other site, the users of the site managed by the latter must be deemed to be potential recipients of the initial communication and, therefore, as being part of the public taken into account by the copyright holders when they authorised the initial communication.

28. Therefore, since there is no new public, the authorisation of the copyright holders is not required for a communication to the public such as that in the main proceedings.


http://curia.europa.eu/juris/document/document.jsf?text=&docid=147847&pageIndex=0&doclang=en&mode=lst&dir=&occ=first&part=1&cid=204867

These paragraphs illustrate the point I was making above that the initial communication, the placing on the internet that is linked to or framed, must be authorised - I'll paraphrase the logic of it:

Quote:
Everyone in the world is a potential recipient of content which is freely accessible on a (particular) web site, (we assume) the content owners would have taken that into account when authorising the publication of that content.

Therefore there is no new public, and the content holder does not need to further authorise linking to the content.


One can probably read those paragraphs in other ways, but that is my reading of them.

These paragraphs also show how confused the court is about the nature of the task at hand. On the one hand it says that the content owner has authorised publication on a particular site, and on the other it goes on to say that (where authorised) it is not an infringement for someone to have the public view that content through the lens of another, unauthorised site. In order to justify this position it invents this idea of a "new public".

You can read some more of this debate here:

http://ipkitten.blogspot.co.uk/2014/10/that-bestwater-order-its-up-to.html

The problem we are struggling with in BestWater is that there is currently no official English translation of the order, which was made in German and French. So we are reliant other people's interpretation/translations.

Here's one translation of the contentious part of BestWater (para 16):

Quote:
"Is this not the case, in particular because the work has already been made freely accessible to all internet users with permission of the copyright holder, then the [embedding] cannot be qualified as a 'communication to the public' within the meaning of art. 3(1) of Directive 2001/29."


ie the first comment at: http://ipkitten.blogspot.co.uk/2014/10/that-bestwater-order-its-up-to.html

So, I'll, respectfully stick with what I initially wrote, which seems to be in the same spirit of others I have read or heard speak about this issue.
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PostPosted: Sun Nov 30, 2014 9:13 pm    Post subject: Reply with quote

Hi Fluoresce and Clive,
This has the potential to develop into a very lengthy debate!

Before I reply to Clive, I will comment of Fluoresce's posting. The cases you quote all precede the Svensson and Bestwater decisions, and so one has to be wary of drawing conclusions from them, if something the CJEU said in either Svensson or Bestwater appears to contradict these conclusions. The short answer is that the facts in all those cases are quite a bit different from the example you have been discussing, namely linking to content already hosted on YouTube. The Vickerman case involved fraud, not copyright, and it is this economic factor (which applies to the other cases also) that is the principal reason the individuals concerned faced criminal prosecutions, rather than being taken through the civil courts. Obviously all of these cases have come about due to the pro-active stance of the film and music industries through their various enforcement bodies such as FACT. And the heavy-handed involvement of the US Department of Homeland Security (through a branch known as ICE) was intended to introduce a chill to the piracy business (pun intended). I think the absence of (I presume) any criminal intent on your part means that the sort of linking (and framing) you have described is largely the same as the facts in Svensson and Bestwater, and has little in common with those other cases.

Turning to Clive's point, I have to say I am not entirely sure what is being argued here. The sentence "how can it be illegal to link to unauthorised content, but not illegal to link to unauthorised content" clearly contains a typo, but I'm not sure where.

So let's return to first principles. Svensson was all about a news clipping service (Retriever Sverige) scraping news content from an online newspaper Gőteborgs-Posten on which Mr Svensson and others worked as journalists, and providing clickable links from the Retriever Sverige website to content hosted on the Gőteborgs-Posten website for articles of interest to Retriever's clients. In this respect it was similar to the UK case known as Meltwater. The journalists maintained that Retriever had infringed their exclusive right to make their works available to the public. They lost their claim in the Stockholm District Court and appealed. The Swedish Court of Appeal sought clarification from the CJEU on 4 aspects, only 3 of which are directly relevant to this discussion. The questions were:
    1. If anyone other than the holder of copyright in a certain work supplies a clickable link to the work on his website, does that constitute communication to the public within the meaning of Article 3(1) of Directive 2001/29?
    2. Is the assessment under question 1 affected if the work to which the link refers is on a website on the internet which can be accessed by anyone without restriction or if access is restricted in some way?
    3. When making the assessment under question 1, should any distinction be drawn between a case where the work, after the user has clicked the link, is shown on another website and one where the work, after the user has clicked the link, is shown in such a way as to give the impression that it is appearing on the same website?
    4. [this is a paraphrase] May individual member states provide wider protection in respect of the right of communication to the public than that provided for in Art 3(1)?

So question one is basically 'is it OK to link to other sites', while question 2 addresses the distinction between normal sites, and sites where access is restricted in some way, for instance via a paywall or password etc. Question 3 looks at the framing issue. The final question self-explanatory.

The court then considered the first three questions together. They held that since providing the work on the first site (in this case the Gőteborgs-Posten website) was an act of communication to the public, accessing the same content via a clickable link was also communication to the public. However it was the same public. The problem with the EU Directive is that it doesn't define 'public' and so the CJEU had to draw on earlier caselaw, principally Case C-306/05 SGAE [2006] (pdf) for guidance. To give a little more context to Clive's quoted paragraphs, here are the preceding two paragraphs:
Quote:
25. In the circumstances of this case, it must be observed that making available the works concerned by means of a clickable link such as that in the main proceedings, does not lead to the works in question being communicated to a new public.

26. The public targeted by the initial communication consisted of all the potential visitors to the site concerned since, given that access to the works on that site was not subject to any restrictive measures, all internet users could therefore have free access to them
And paragraph 28 succinctly states the finding of the court on question 1.
Quote:
Therefore, since there is no new public, the authorisation of the copyright holders is not required for a communication to the public such as that in the main proceedings
The court then went on to quickly decide (paras 29 & 30) that since basic linking did not infringe under Art 3(1), framing (question 3) didn't either.
Understandably the court found that where access to a website was restricted, Art 3(1) only authorises communication to that part of the public who have lawful access to the site, and any link which circumvents the restriction would infringe because it would allowing access to a 'new' public whom the rights holders had not envisaged being the public to which they wished to communicate.
In answering question 4 the court took into account that one the main purposes of Directive 2001/39 was to harmonise copyright across the EU and to remove uncertainty. On that basis member states are precluded from introducing wider protection than that provided for in Art 3(1).
So that's Svensson.
What about Bestwater? This case concerned Bestwater International, a manufacturer of water filtration systems, and Messrs Mebes and Potsch who are sales agents for a rival manufacturer. Bestwater had produced a short video on water pollution. By means which are unclear, a copy of this video was posted on YouTube without having been authorised by Bestwater. Mebes and Potsch then linked to the YouTube video from their own websites, using framing. Thus the video on water pollution appeared as part of Mebes's and Potsch 's websites, although the actual content was hosted by YouTube at all times.
Bestwater sued Mebes and Potsch. After some complicated initial proceedings, the German Federal Court referred the following question the CJEU.
Quote:
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?
(source: Curia website).
So this referral is very similar to question 3 in Svensson, and despite the fact that the linking appears to have involved an unauthorised communication to the public, the question for the CJEU does not mention this factor. And understandably the court does not specifically address the issue, although it is acknowledged in the preamble that Bestwater claims the posting on YouTube was not authorised by them. Because the matter that the court has to examine had already been looked at in detail in Svensson they take a mere 19 paragraphs to conclude thus: (a translation from the French by me and Google translate)
Quote:
19 In view of the foregoing, the answer to the question is that the mere fact that a copyrighted work, freely available on a web site, is inserted on another website through a link using the technique of the "framing" as used in the main proceedings, cannot be described as "communication to the public" within the meaning of Article 3, paragraph 1, of Directive 2001/29, to the extent the work in question is not transmitted to a new public or disclosed following a specific technical mode, different from that of the original communication.
This is a very thin finding which possibly leaves more questions unanswered than it answers. But here, for what it is worth, is my analysis. A work which is 'freely available on a web site' is a communication to the public; if another website provides a link to the same content, that is not a new act of communication, hence the owner of the second site does nothing wrong. If the owner of copyright in the work has not authorised the communication to the public, then Art 3(1) says there is infringerment. But since the second site is not making a communication to the public separate from the act by the first site, the second site is not liable for infringment. The test for validity of this assertion is that, if the first site takes down the video at the request of the rights owner, the video will de facto no longer appear on the second site. That indicates to me that there is but one act of communication involved, and that is the one conducted solely by the first site.
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CliveB
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PostPosted: Mon Dec 01, 2014 2:34 pm    Post subject: Reply with quote

AndyJ wrote:
Turning to Clive's point, I have to say I am not entirely sure what is being argued here. The sentence "how can it be illegal to link to unauthorised content, but not illegal to link to unauthorised content" clearly contains a typo, but I'm not sure where.


I can help you out there, there is no typo, it is a deliberate conflict of logic - like the argument you are trying to build.

I don't really understand why you won't deal with the point raised in paragraph 27 of Svensson, which directly addresses the issue of whether a work is authorised to be placed on the internet. This is at the centre of the issue Fluoresce is asking about. You dodge the same issue in Bestwater, picking out the parts that suit your argument. Here is paragraph 16 in French:

Quote:
16. Lorsque tel n’est pas le cas, notamment, en raison du fait que l’œuvre est déjà librement disponible pour l’ensemble des internautes sur un autre site Internet avec l’autorisation des titulaires du droit d’auteur, ledit acte ne saurait être qualifié de «communication au public» au sens de l’article 3, paragraphe 1, de la directive 2001/29 (voir, en ce sens, arrêt Svensson e.a., EU:C:2014:76, points 25 à 28.).


Here is Google's translation:

Quote:
16. Where this is not the case, in particular, due to the fact that the work is already freely available for all Internet users to another website with the authorization of the copyright holders, the said act can not be called "communication to the public" within the meaning of Article 3, paragraph 1 of Directive 2001/29 (see, to that effect, Svensson and Others, US: C: 2014: 76, paragraphs 25 to 28.).


I will emphasise:

Quote:
…with the authorization of the copyright holders…


Here's the German version:

Quote:
16. Ist dies nicht der Fall, insbesondere weil das Werk bereits auf einer anderen Website mit Erlaubnis der Urheberrechtsinhaber für alle Internetnutzer frei zugänglich ist, kann die betreffende Handlung nicht als „öffentliche Wiedergabe“ im Sinne von Art. 3 Abs. 1 der Richtlinie 2001/29 eingestuft werden (vgl. in diesem Sinne Urteil Svensson u. a., EU:C:2014:76, Rn. 25 bis 28.).


And Google says:

Quote:
If this is not the case, especially because the work is accessible to any Internet user already belongs to another website with the permission of the copyright holder, the act in question can not be considered 'public' within the meaning of Art. 3, para. 1 of Directive 2001/29 be classified (see, to that effect, Svensson et al EU:. C: 2014: 76, paras 25 to 28.).


And I'll emphasise that point again:

Quote:
…with the permission of the copyright holder…


You'll also note that the reference to Svenson is paragraphs 25-28, not 25, 26 and 28. Paragraph 27 of Svensson makes the same point, with the authorisation of the rights holder.

Bestwater is distinct from the scenario that Fluoresce is asking about, because, in Andy's own statement of the facts, the rights holder already placed that video on the internet (then someone else uploaded it to YouTube). The CJEU's position seems to be that once something is uploaded, made public, anyone can post it elsewhere, link, embed or frame it - as long as the initial posting was authorised. I think this is clearly nonsensical, but this is the rationale we are debating, not what I believe.

Fluoresce is asking about video that is unauthorised.

I'll rely upon the four point I initially made, the CJEU says linking/framing is ok as long as:

    There is no technical change in format
    There is no avoidance of security measures
    There is no "new public"
    There was an initial authorisation by the rights holder (and that authorisation continues)
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PostPosted: Mon Dec 01, 2014 6:34 pm    Post subject: Reply with quote

Clive,
At the risk of repeating myself I fail to see exactly what point you are trying to make. You state your premise as "how can it be illegal to link to unauthorised content, but not illegal to link to unauthorised content!?" and criticise me for arguing illogically, yet you have not shown how the first part of that question is true. Nowhere in the Svensson/Bestwater judgments does the court say that linking to unauthorised content is either legal or illegal. Art 3(1) says that communicating to the public unauthorised work is infringement, but it doesn't mention linking. We therefore need to examine what the court says about linking and whether linking does or does not breach Art 3(1).

I agree that both Svensson and Bestwater say that where the owner of copyright in a work has authorised the communication of that work to the public, then Art 3(1) says that is not an infringing act. (your last point)

Svensson and Bestwater also say that no new public is involved in the general case where a link is established to the site where the authorised communication takes place. Neither judgment tackles head on the special case where the communication is not authorised quite probably for the simple reason that that would be an infringement per Art 3(1). In Svensson the court did discuss briefly the situation where the authorised communication was effectively to a special part of the public, eg a subscriber to a pay-walled site, and found that for a second site to link to that content by breaching the restriction would amount to communication to a new public, and thus since this was not authorised by the rights holder, it would be an infringement under Art 3(1).

Hopefully we agree thus far. The technical mode of communication is not, I hope, in dispute. Nor I suggest is there a distinction to be made between an ordinary link and a framing link. In both cases before the CJEU the fact that the link resulted in the work appearing within a frame on the second website was seen as not significant when considering the issue of communication to the public. I hope you agree on that point also.

So that just leaves the case of a link to unauthorised content.
If I have understood you correctly, your point is that a link of this sort infringes just as much as the original unauthorised posting infringes, and so both sites are liable equally. As I tried to explain in my previous posting and earlier in this one, since the matter of a 'new' public is separate from the authorised/unauthorised issue, my contention is that the link does not engage a new public, and therefore the linking site does not by its action and separately from the main site, infringe an unauthorised work. The main site does infringe where the work is unauthorised, but because it also makes the work available to the public in general, a link does not reach an additional public, hence there is no new act of communication. Neither the Svensson nor the Bestwater judgment give us any guidance here because the CJEU were not asked to rule on it. But given that the court in Bestwater were aware that the video had been placed on Youtube without authorisation it must surely have been in their minds when they were answering the question from the Bundesgerichtshof which clearly posed the question in the context of the "circumstances such as those in the main proceedings". Incidentally I'm not clear where you got the information that "the rights holder already placed that video on the internet" before someone else placed it on Youtube. That amount of detail doesn't appear in the Bestwater order, and according to German lawyer Oliver Löffel (quoted in the IPKat blog) it wasn't available from BGH papers either:
Quote:
In the national proceedings in BestWater, the claimant has been claiming that its film (a 2-minute long commercial) was uploaded onto Youtube “without its permission”. If and to which extent the work had been communicated by the right owner itself on any other website is not clear by reading the decisions of the Bundesgerichtshof or the CJEU, and neither is the issue of whether the work was subsequently uploaded onto Youtube with the permission of the copyright owner.
This point may well be significant when considering the Court's position regarding something which has already been made available. As Dr Eleonora Rosati says later in the same IPKat piece
Quote:
At paragraph 16 of its order the CJEU appears to side with the referring court, that had held the view that insertion of links by means of framing does not constitute a communication to a new public because the film was already freely available on YouTube (paragraph 10). In other words: the subjective state of either the person who links or the rightholder (has he/she had authorised the communication?) does not really matter. What matters is only whether or not the content one links to is freely available on a website. This means that the lawfulness of content may be irrelevant.


Anyway, since the CJEU has dodged the issue, neither of us has substantive caselaw to draw on for this particular issue, and thus our opinions are just that.
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PostPosted: Mon Dec 01, 2014 11:35 pm    Post subject: Reply with quote

Andy, I believe we disagree over the issue of whether it is an infringement to link/frame unauthorised content. I base my rationale, that it is an infringement, on the issue of authorisation from the rights holder being within the rationale that the CJEU has used. That there are four criteria what make this an infringing or non-infringing act:

    There is no technical change in format
    There is no avoidance of security measures
    There is no "new public"
    There was an initial authorisation by the rights holder (and that authorisation continues)


My view is that to be non-infringing one must avoid all four of these.

Your view seems to be that if there is no "new public", then this knocks out the other three. I disagree.

As far as what I think about whether framing and linking are distinct, I believe that they are worlds apart, and to even try to put them in the same class is the height of madness. It shows a thorough misunderstanding of the purpose of copyright protection and of the ways in which these HTML/HTTP methods can be used.

What the CJEU seems to have decided is that if you authorise content on the internet, and you do not put in place a technical method to restrict access to that content, then anyone else can use and reuse that content. The court may well not have realised that this is the consequence, but effectively that is where it leads. To be analogous, if I broadcast my radio programme in London, then the court is saying that it is not an infringement to relay that same broadcast on a different frequency, in the same catchment area.

Oh, and when my ads are playing the relayed programme can have different ads placed in the broadcast.

That cannot be correct.

To address a couple of wrinkles in the question Fluoresce asks: can I link to unauthorised posting of BBC, etc programmes?

I believe that if there is no authorised version on line then this is an infringement - according to the rationale laid out by the CJEU, a view I'm not sure Andy agrees with.

If there is an authorised copy online, is the "new public" issue engaged? In the case of BBC material I believe that a great deal of its video content is not accessible outside of the UK, through a technical method of protection (which isn't terribly effective, but it does work in a blunt form). Therefore linking to that material in a way that enabled access from outside the UK may engage the "new public" or "circumvention" ratios that the CJEU has developed.

To deal with the issue of "how can it be illegal to link to unauthorised content, but not illegal to link to unauthorised content", the CJEU says it is not an infringement to link to content authorised to be on the web, wherever that content may be. The English courts seem to be of the view that linking to unauthorised content is an infringement, see the blocking injunctions granted in newzbin, newzbin2 and the Pirate Bay cases.

(Edit: corrected a typo).
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PostPosted: Tue Dec 02, 2014 6:06 am    Post subject: Reply with quote

We may be able to make some progress here.

First though I would like to deal with the issue of linking versus framing. You say "that they are worlds apart, and to even try to put them in the same class is the height of madness." Technically they amount to much the same process. If you click on link it opens in a new window or tab (depending on your browser's settings) on the screen of your device. If you activate a embedded framing link it opens in a frame and so appears to form part of the original website you were on. In both cases the source of the video stream (in the type of case we are discussing) is the hosting site such as YouTube. In other words the only difference between the two is the actual way the video is presented on the screen. We know from Case C‑360/13 that viewing a copyright work on the user's screen does not contravene Article 5(1) of Directive 2001/29/EC (that is to say the copies made on the screen and in the cache are permissible without infringing copyright because it is necessary for the transmission of the communication via the internet). And in any case, whatever your objections, the CJEU has said, twice, that framing is not a different situation to linking in relation to the communication to the public issue.

But turning to the main thrust of your argument you say:
Quote:
There is no technical change in format
There is no avoidance of security measures
There is no "new public"
There was an initial authorisation by the rights holder (and that authorisation continues)

My view is that to be non-infringing one must avoid all four of these.

Your view seems to be that if there is no "new public", then this knocks out the other three. I disagree.
But of course my view is nothing of the sort. The CJEU has clearly said that since linking involves no new technical format as compared to the communication by the first website then the issue is not relevant. A new format would de facto involve a new public therefore if case 1 applies, case 3 becomes negative. The CJEU also said that the avoidance of security measures would involve a new public, and therefore if 2 applies, 3 must become negative. I haven't at any stage disagreed with the CJEU position with regard to either case 1 or 2.

So we are back to my statement that we disagree solely on whether the absence of authorisation means that a new public comes into existence for the link as well as the first site. My point is that the only times when a new public is created by a link is when a new technical mode is employed or a security restricted is circumvented. Removal or absence of the authorisation does not affect the premise that a link (absent your conditions one and two) per se does not create a new public.

The remainder of your posting doesn't change this, since you are basing it on the false assumption that I hold that "if there is no 'new public', then this knocks out the other three" which I do not.

I am loath to use analogies here, because too often the debate chases faults in the analogy, not the main argument. But let's give it go. Say your vehicle breaks down and a friend comes along to tow you home. Once the tow bar is fitted, you both set off, linked together as you are. Your friend is a bit of a speed merchant and exceeds the 30mph speed limit and is stopped by the police. Who is going to be reported for speeding: the driver of the lead car, or both drivers?

Finally your point about the English (and Welsh) courts seeming to take a different view when it comes to blocking injunctions. Well yes they do but for entirely different legal reasons. Those injunctions are made possible by section 97A CDPA which says
Quote:
97A Injunctions against service providers

(1) The High Court (in Scotland, the Court of Session) shall have power to grant an injunction against a service provider, where that service provider has actual knowledge of another person using their service to infringe copyright.

(2) In determining whether a service provider has actual knowledge for the purpose of this section, a court shall take into account all matters which appear to it in the particular circumstances to be relevant and, amongst other things, shall have regard to—

    (a) whether a service provider has received a notice through a means of contact made available in accordance with regulation 6(1)(c) of the Electronic Commerce (EC Directive) Regulations 2002 (SI 2002/2013); and
    (b) the extent to which any notice includes—
      (i) the full name and address of the sender of the notice;
      (ii) details of the infringement in question.

(3) In this section “service provider” has the meaning given to it by regulation 2 of the Electronic Commerce (EC Directive) Regulations 2002.
I rather hope you can see the difference between this and the narrower issue of communication to the public. Apart from anything else they involve two completely different EU Directives.
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CliveB
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PostPosted: Tue Dec 02, 2014 2:31 pm    Post subject: Reply with quote

Andy, we disagree, we are not going to change our minds on that and there is no point in continuing to illustrate how we disagree. What I find amazing is that you continue to want to ignore the ratio of the courts in their assessment that authorisation of the original posting is required - this is tied to the three other criteria, it does not stand alone.

You are correct in your assessment of the legal position on the blocking injunctions. But I think what you will concede is that no one is infringing copyright by visiting the blocked sites. The infringing action is using the links from those sites to download unauthorised content. And the old defence of "legitimate uses" probably applies anyway.

There is a world of difference in the use of links, framing and embedding. Although the technical aspects of these are similar (they are not identical), the actual user experience is very different, and the methods of exploitation (of the technology and the targeted works) have the potential to be vastly different. If the CJEU cannot distinguish between these things, and it seems that it cannot, then I believe it doesn't really understand the processes involved. That requires some new thinking, or new legislation. Not a "new public".

Finally, your use of analogy is selective, and doesn't address the points I made. I can make another analogy, or two, or more:

If my employee injures someone in the course of his work who is liable?

If I indicate to my friend that he can borrow my car, to take his mother to visit a friend, and he is stopped for having no MOT or insurance, do I escape liability?

If I go with a friend to rob a bank, he pulls out a gun and kills someone am I just a bystander?



Fluoresce, proceed at your own risk, and keep abreast of the law.
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