What just happened?
The Court of Appeal ruled on hyperlinking in the case of Warner & Sony v Tunein[1] by stating that the Defendant, Tunein, infringed the right to communicate a copyright work to the public by allowing its users to access around 70, 000 music stations all around the world broadcast using its online platform ‘TuneIn Radio”.[2] Post Brexit, the Court of Appeal had a chance to depart from the decision given by the Court of Justice of the European Union (CJEU) on a matter discussing linking and framing in the case of VG Bild-Kunst v SPK[3], however, the Court decided otherwise and considered the decision of the latter to be ‘highly persuasive’.[4]
What does this mean?
The courts in the recent years have time and again faced the question whether linking and framing amount to copyright infringement.[5] More specifically, the courts have sought to answer whether linking amounts to ‘communication to the public’ that would require the copyright holder’s consent. The said communication right is stated in Article 3 of the Information Society Directive of EU and is amended into English law via amendment of Section 20 of the Copyright, Designs and Patents Act, 1988.
In the case of Warner & Sony v TuneIn, the Claimants, Warner Music and Sony Music, alleged that TuneIn had allowed access to radio stations from around the world that were not licensed for reproduction in the UK, thereby, committing the restricted act of communication to the public.[6] TuneIn, on the other hand, defended itself saying that it merely provided hyperlinks to content that was freely available on the internet, and, therefore played a similar role as that of a search engine.[7] The Court of Appeal, however, turned down the argument by TuneIn and ruled in favour of Warner Music and Sony Music saying that such broadcasting of third party radio streams, that were not licensed in the UK, via links amounted to communication to the public, thereby, resulting in copyright infringement.
The jurisprudence in the aforementioned case was inspired by the recently decided case of VG Bild-Kunst v SPK wherein the CJEU opined that in cases of linking and framing, copyright law comes into picture when the author takes technical measures to prevent embedding of the work in other websites and those measures are circumvented by linking.[8]The court also held that to ensure legal certainty and smooth functioning of the internet, it was important that the content was not restricted by a copyright holder unless they limited their consent by effective technological measures.[9] The Court of Appeal agreed to this jurisprudence but realized that this cannot be used to disregard the central question in their case, that is, whether linking to a foreign radio station, only licensed in its home jurisdiction, infringed copyright in the UK.[10]
What does this mean for the law sector?
The CJEU judgements are no longer binding on the English courts, so had this case taken an opposite approach than the one taken by CJEU, it would have been interesting to witness. However, the Court of Appeal very cautiously followed the footsteps of the CJEU. The author agrees with the reasoning given by Arnold LJ in taking this approach in this particular case. He reasoned that the CJEU had “unrivalled experience in confronting this issue” and “had developed and refined its jurisprudence over time”. Departure from the existing jurisprudence, given that there had been no changes in the domestic legislation or international framework, would only create considerable legal uncertainty.[11] If and when the English Courts decide to depart from the CJEU jurisprudence and develop their own, would be an intriguing event to behold.
Written by Neha Singh
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#Bird&Bird #IrwinMitchell #AkinGumpLLP #DLAPiper #HoganLovells #White&Case #CliffordChance
References:
[1] [2021] EWCA Civ 441
[2] Tom Scourfield and John Enser, “Court of Appeal sticks with CJEU jurisprudence on communication to the public (for now): TuneIn v Warner” (London, 06 April 2021) <https://www.cms-lawnow.com/ealerts/2021/04/court-of-appeal-sticks-with-cjeu-jurisprudence-on-communication-to-the-public?cc_lang=en> accessed 27 April 2021
[3] Case C-392/19 VG Bild-Kunst v Stiftung Preußischer Kulturbesitz [EU:C:2021:181]
[4] William Wortley and Phil Sherrell, “Court of Appeal addresses hyperlinking” (Media Writes, 02 April 2021) <https://mediawrites.law/court-of-appeal-addresses-hyperlinking/> accessed 27 April 2021
[5] Linking refers to connecting some selected content from one web page to another through hyperlinks and framing refers to letting the user view a website’s content through the frame of the opened website.
[6] Scourfield (n2)
[7] ibid
[8] Dr. Nils Rauer and Ruth Maria Bousonville, “CJEU ruling on framing and inline linking 'strengthens protection of authors” (17 March 2021) < https://www.pinsentmasons.com/out-law/news/europaeischer-gerichtshof-urteilt-zu-framing-und-inline-linking> accessed 28 April 2021
[9] ibid
[10] Wortley (n4)
[11] Warner & Sony v TuneIn [2021] EWCA Civ 441 <https://www.judiciary.uk/wp-content/uploads/2021/03/Warner-v-TuneIn-judgment.pdf> accessed 28 April 2021
Disclaimer: This article (and any information accessed through links in this article) is provided for information purposes only and does not constitute legal advice.