Implied Licence instead of 'New Public'?

Poorna Mysoor (University of Oxford), “Implied Licence instead of 'New Public'?”

In interpreting the right of communication to the public, the CJEU has introduced the concept of ‘new public’. Essentially, this concept captures the idea that if a copyrighted content is communicated to a public not originally intended by the copyright owner, then it amounts to communicating it to the new public. It should have meant that a communication to the public cannot take place unless it is made to the new public, embedding the concept of new public within the right of communication itself. However, in the more recent decision of Nils Svensson v Retriever Sverige AB (Svensson) relating to linking, the CJEU appeared to regard new public as an external defence to copyright infringement. Although there is a body of law developing from the decisions of the CJEU on the right of communication to the public, the relationship of the concept of new public with the right itself somehow remains a mystery.

One way to resolve this could be to ascertain if there is something new in the concept of new public, or whether the CJEU has been using the language of implied licence in other words. It does appear that the concept of new public is consent based. When a copyright owner first communicates her work to the public or makes it available to the public, she is meant to know what that public is and consents to only that public using the work. When one envisages an implied licence to exercise the right of communication to the public, the implied licence must address firstly, what is authorised, which informs the act of communication; and secondly who is authorised, which informs the concept of public. The implied licence might cease to exist if either one of these is varied, since it falls outside the scope of the implied licence. For example, if the act of communication is through a different means than the one contemplated by the copyright owner, then the implied licence ceases. Likewise, if the communication is directed at a public not envisaged by the copyright owner, then again the implied licence ceases.

In Svensson case, it is a given that in the act of linking, the technological means is the same. What can vary within the copyright owner’s contemplation is the public. If it is a case of no terms of use which was the case in Svensson, then the copyright owner has defined the recipients of her implied licence to be potentially any member of the public. Since by linking the remit of this public is not changed, the implied licence continues. However, Svensson’s application of new public in this manner does appear artificial. Since the first act of placing the content on the internet by the owner and linking to it by the user are both always on the internet, there might never be a new public. In this sense, the CJEU appears to be stating the obvious. If implied licence stays close to and mirrors only the meaning of new public, then it does not appear to bring about any more clarity than if the argument of new public was adopted.

However, if the terms of use exist in relation to the online content, and these terms state that the content can only be used for personal non-commercial purposes, then those who use the content for commercial purposes will become new public, though within the same medium of the internet. However, it would be extremely difficult, if not impossible, to enforce the terms of use which propose to filter users between commercial and non-commercial users. Unless a paywall or some other forms of technological protection measures are used, regardless of a new public coming into existence, the content so placed on the internet will continue to be used. This prompts us to see if the concept of new public should be abandoned, and a wider concept of implied licence should be adopted, so that situations like this can be effectively addressed.

My presentation will explore the justification for a licence to be implied based on factors other than the consent of the copyright owner, and how it can be used in a principled way to bring reasonableness to the use of online content.