Post-Svensson stress disorder #2: What does "freely available" mean?

Following the first episode of the Post-Svensson stress disorder series, in which these Kats discussed whether lawfulness of content one hyperlinks to matters [the conclusion was in the affirmative], it is now high time for another issue raised by the Court of Justice of the European Union (CJEU).

In its decision the CJEU held that the owner of a website may, without the copyright holder’s authorisation, redirect internet users via hyperlinks to protected works that are freely accessible on another site. 

The CJEU stated that "the provision on a site of a clickable link to a protected work published and freely accessible on another site has the effect of making that work available to users of the first site and that it therefore constitutes a communication to the public. However, since there is no new public, the authorisation of the copyright holders is in any event not required for such a communication to the public."

However, the decision did not add much to what "freely accessible" might mean. In particular:

Under what conditions shall a work be considered "freely available" for the purpose of applying the Svensson principles?

To address this question, it is worth starting from paragraph 31 of the decision, which states that:

"[W]here a clickable link makes it possible … to circumvent restrictions put in place by the site on which the protected work appears in order to restrict public access to that work to the latter site’s subscribers only, and the link accordingly constitutes an intervention without which those users would not be able to access the works transmitted, all those users must be deemed to be a new public … and accordingly the holders’ authorisation is required for such a communication to the public". 

"Freely available"?
Well, at least Archie thinks so

“This is the case”, continued the Court, “where the work is no longer available to the public on the site on which it was initially communicated or where it is henceforth available on that site only to a restricted public, while being accessible on another Internet site without the copyright holders’ authorisation” [this looks like a confirmation that one cannot link to works made available without the rightholder's consent].

The CJEU concluded that a hyperlink may be considered an act of communication to the public as per Article 3(1) of Directive 2001/29/EC when two cumulative conditions are met:

(i) The rightholder made his/her work available on a website that restricts the generality of internet users from accessing it; 

(ii) A hyperlink circumvents such restriction and makes the work potentially available to any internet user.

Following Luca Sagaria's inspiring explanation, it would seem that the type of restriction the CJEU had in mind is a paywall. Paywalls are technological systems aimed at preventing users from accessing some [these are called soft paywalls and include measures that allow free access to some content] or all [these are known as hard paywalls and include measures that require you to log in to browse a certain website] contents on a given website without paying a subscription. Such measures are widely employed by content-based undertakings, eg The Wall Street Journal, The Times and The New York Times in the news field or Netflix in relation to film streaming. 

Links can of course circumvent paywalls. This is for instance what happened with the NYT website. The US newspaper adopted a soft paywall that would allow users to read for free 20 articles every month. When accessing the 21st article, a window would appear in the middle of the screen, obscuring the article and reminding users that it was time to subscribe. Shortly after introducing its paywall, the NYT suffered from severe paywall circumvention. Some users discovered that it was possible to circumvent the paywall simply by deleting the final part of the web address (URL) of the paywalled contents. Applying the Svensson principles to cases like these, providing this sort of amended links would be considered an (unauthorised) act of communication to the public.

A katwall

Even though the NYT's loophole seems to have been fixed now, some users who do not feel like paying for NYT's content [shame on them, says Merpel] have engaged in the creation of links to circumvent its paywall. Even when the maximum number of 20 articles has been reached, "[y]ou can still read an unlimited amount of articles from links through email, social media, blogs, and search. Become friends with a person who owns a subscription and have them share news of interest to you", notes Business Insider.

Quite ironically, a way to access NYT content even after the limit of 20 articles is through the links provided by the NYT Twitter account itself. How would the Svensson's principles apply to links provided by the rightholder itself that happen to circumvent restrictions that it has set?

Another way in which links could circumvent restriction measures is when Content Delivery Network ('CDN') services are used. In a nutshell, some work files (videos, music or high-definition pictures) can be very large. In order to increase websites' performances, rightholders may rely on third parties' servers to host some of their content, distribute traffic among different servers and locate content geographically closer to targeted users. What may occur is that a certain work, say an article from The Times, is hosted on its paywalled website, but related media elements (typically, pictures or videos) that appear on that very page are “physically” [but is there anything physical on the internet, wonders Merpel] located on another server. Each of those elements can be reached through a hyperlink, but not all of their CDN's pages are paywalled. 

An example may come in handy. One of these Kats' Facebook page, is [not paid-for, but just] walled. However, anybody could circumvent the wall and access one of his pictures by clicking this link, which redirects to a picture hosted on a CDN server managed by telco giant Akamai. Replace this Kat with any other rightholder and his picture with any copyright-protected content, and you will see that that particular hyperlink perfectly matches the definition of circumventing measure employed by the CJEU.

Besides technical circumvention, another issue raised but not addressed at any particular length by the CJEU is whether also non-compliance with the terms and conditions of a certain website might be relevant to considering a work as not freely available.

Let's take for instance the (common) case of the Mail Online. The relevant terms state that: "You may view (and, where applicable) listen to) the content available on the Site for personal non-commercial use ... Unless otherwise stated in these Terms, you must not (whether directly or indirectly) ... make available ... all or any part of the content or [webs]ite". 

While it is true that the content of the Mail Online website is freely accessible, the public that the relevant rightholder took into account when it authorised the initial communication to the public may not include those who wish to make commercial use of its content.

Therefore the question becomes whether the provision on a commercial site, eg a paid-for news aggregation service, of a clickable link to an article that has been made first available on the Mail Online constitutes a communication to a new public.

While [as suggested here] this aspect of Svensson will be likely need to be addressed in future cases, these Kats are inclined to respond in the negative, ie that existence of contractual restrictions is not relevant to whether a hyperlink constitutes an act of communication to the public.

This is because contractual restrictions relate to uses that - from a temporal and logical standpoint - follow the moment of the initial communication. This conclusion appears especially supported by paragraphs 26 to 28 of the Svensson decision. In a case like that of the Mail Online, the public targeted by the initial communication consisted of all potential visitors to its site since, given that access to the works on that site was not subject to any restrictive measures, all internet users could have free access to them. This means that the 'new public' requirement would not be likely met and hyperlinks provided for commercial uses would be acts of communication, but not to a new public.