Further to an application for judicial review, the High Court has quashed the private copying exception – meaning that from July 17 2015, private copies of content made for personal use are no longer exempt from copyright law. This means that an individual who makes a digital copy of legally acquired music infringes copyright.
What is the private copying exception?
In October 2014 the Copyright and Rights in Performance (Personal Copies for Private Use) Regulations 2014 (SI 2014/2361) introduced the following private copying exception in the United Kingdom:
"The making of a copy of a work, other than a computer program, by an individual does not infringe copyright in the work provided that the copy:
Following on from our post back in June, Linking: looking past Svensson, this post focuses on the recent European Court of Justice (ECJ) decision in BestWater (Case C-348/13) regarding embedded videos (available in French and German, but not yet in English).
In Svensson the court considered linking and framing, and held that providing links does not constitute communication of the underlying works to the public, as these were freely available online; thus, providing links does not communicate the works to any ‘new public’.
The question in BestWater was similar:
"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?"
With a number of pending cases before the European Court of Justice (ECJ), and its recent decision in Svensson and its decision in Meltwater hotly anticipated on June 5, we thought this would be a good time to round up the case law on linking and ask whether the ECJ has resolved this particular quirk of the application of copyright online.
We begin with Svensson, a case which was brought by a number of Swedish journalists against a media monitoring organisation, Retriever. Retriever provided links to websites hosting content which had been written by the journalists. The journalists argued that the provision of these links constituted a communication to the public, and thus infringed Article 3 of the EU Information Society Directive. The Swedish court referred four questions to the ECJ, which held as follows:
In short, provision of a link does not constitute a communication to the public, as long as the content subject to the link is already freely accessible online.
Contrast this with the position in ITV v TVCatchUp, where the ECJ held that by capturing television broadcasts (which were freely available to anyone with a television licence) and retransmitting the content over the Internet, TVCatchUp did communicate broadcast works to the public. The difference seems to be that the broadcasters had never intended their content to be viewed online, whereas the journalists in Svensson plainly always intended their articles to be viewed on the websites which they had authorised.