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Publishing online to the world: do you need to seek advice everywhere?

The far reach of online publication comes with many challenges for rights holders.

April 2016

Publishing material online raises the risks of infringing copyright in many different countries at the same time if permission has not been sought for use in every country. Faced with the application of the copyright laws of many different countries, we are often asked in which countries a would-be publisher should seek advice on copyright clearance in these circumstances. It is generally impractical, unfeasible and prohibitively expensive to analyse in every country where material may be available without a licence whether copyright needs to be cleared and, if so, how. The rules on exceptions and term, for example, will often vary between countries so where should advice be sought?

The EU rules on jurisdiction for online copyright infringement mean that a copyright owner can sue for copyright infringement in any EU member state in which the work is accessible, regardless of whether there is actually any infringement carried on in that state. If there is a risk of being sued anywhere in the EU, an instinctive reaction may be to obtain advice on clearance in every EU country. However, that reaction should be tempered by the test for whether the communication to the public right is infringed in the state in which the material is accessible.

That right is likely only to be infringed in the state(s) which is(are) targeted by the publisher of the material. If, say, a service accessible across the EU were published in French only, operated out of France, carried only advertising related to France, had the majority of its readers in France and gave no other indication of having an international audience beyond France, it is very unlikely that the website would be infringing the communication to the public right in any other member state. As such, it would not seem necessary to clear copyright in any country other than France.

However, if the service had different language versions for the languages spoken across Europe, had substantial readers in each member state and provided ways of contacting the publisher for each EU state, then it is more likely that it would be deemed to be targeting a range of countries and infringing copyright in those countries for which permission had not been obtained (subject to the application of any exceptions or defences).

EU Copyright Directive

The EU Copyright Directive harmonised the main rights relevant to online publishing: the reproduction right and the communication to the public right (including the making available right). Subsequent case law fully harmonised the definitions and scopes of these rights across the EU. As a result, the laws of each EU member state on whether one of the exclusive rights is engaged by a publication should be the same, so advice from only one country should be sufficient.

The Directive also provides for an exhaustive, but not mandatory, list of exceptions to the reproduction and communication to the public rights. Member States are therefore free to introduce as many or as few of these exceptions as they wish but cannot introduce exceptions which are not listed. The potential for an unlicensed use of a copyright work to be infringing in one country but able to take advantage of an exception in other countries is therefore very real.

Another area that can cause problems is the different rules for calculating term across the EU. A work that may be public domain in one country may well still be in copyright in others. While term is generally harmonised at seventy years after the death of the author, the Term Directive introduced the "rule of the longer term". This provides that, where a member state provided a longer term than the harmonised level prior to 1 July 1995 and that term was already running at that date that longer term will be preserved. The problems caused by this rule for copyright clearance are felt, for example, whenever the French wartime extension for authors killed in military service during the Second World War is relevant. They are also felt for the purposes of UK copyright when considering works which were published only after the death of the author but before 1 August 1989 (i.e. when the current copyright legislation came into force) because the term of protection for those works is at least 50 years after first publication.

So, if advice is not to be sought in every single country where material may be made available, targeted or published without a licence, what should publishers consider when deciding where to take advice on whether their actions will infringe copyright? We would suggest taking advice in at least one or more of the following countries:

  • The country from which the service originates
  • If different, the country from which the decisions are made as to what content is to be included in the service
  • The country in which the publisher's assets are based
  • The countries in which the publisher's main intended audience are based
  • The countries in which the publisher's main actual audiences are based
  • The countries in which the authors of the material used on the service are most closely connected
  • The countries in which the material will be of most interest or value

As will be appreciated, these countries may change as the service develops and may depend on the specific material to be used without a licence. There may also be a need to prioritise even between the countries which are identified applying these criteria. Of course, they are not fool-proof as, if there is one thing that is certain in online publishing, it is that there is always potential for surprise. However, at least taking the criteria into account will lead to a commercially supportable decision as to what risks to take and enable a risk-adjusted approach to copyright clearance to be taken, which is more realistic than a blanket approach to clearance.

If you have any questions on this article please contact us.

Publishing online to the world: do you need to seek advice everywhere?
Adam Rendle

Adam considers how publishers can approach copyright clearance when publishing online.

"...the laws of each EU member state on whether one of the exclusive rights is engaged by a publication should be the same, so advice from only one country should be sufficient."