Blue Sky Linking
This article will be published in issue 7 of (2021) Ent. L. R.
Sky UK Ltd (“Sky”) successfully obtained interim protection in the Scottish Court of Session from infringement of their broadcast rights by an individual who made Sky broadcasts freely available to the public, via links posted on the popular online forum Reddit and videos available to view on YouTube. The Court agreed that providing for unfettered access to the content, without the permission of the rights holder, was prima facie a copyright infringement.
Sky’s internal investigations team produced a report into the possible sharing of Sky’s original broadcast content by unauthorised third parties through the internet. Within the report, 3 pages on Reddit (“subreddits”) and an associated YouTube channel were identified as sharing Sky’s content on a free-to-access basis. Each subreddit had thousands of readers and the YouTube channel had over 16 million views.
The operator of the subreddits and YouTube channel used an account on the funding website Patreon, whereon other users (called ‘Patrons’) can pledge money to other individuals, usually engaged in a creative task, to support their efforts and, in some cases, receive rewards or preferential access to that person’s products or services. The Patreon account acknowledged the fact that the user ‘shared’ television programmes and wanted funding to pay for subscription services in that connection.
Sky contacted YouTube to appraise them of the infringement and the YouTube channel was shut down. The subreddits, however, operated by request – copies of particular broadcasts were made accessible on a Google Drive after users specifically asked for their inclusion. As such, though individual links were occasionally removed by Reddit, the cycle was continuous and fresh programmes were periodically added.
Sky were able to trace the individual operating the YouTube channel and subreddits by a combination of the email address connected to their PayPal account (to which the Patreon account was linked) and their online username. The same username, or a close variation of it, was used across numerous websites. As the user had previously held Sky accounts, they could determine an address for them as well, and eventually identified the Respondent, Alex Cherrie, as the responsible individual.
Sky sought an interim interdict – equivalent to an interim injunction - requiring Cherrie to refrain from further infringing activity.
As the YouTube channel had already been taken down, the judgment focussed primarily on the Reddit links and the extent to which they constituted copyright infringement. To this end, there were two separate questions – anticipated in counsel’s submissions on behalf of Sky – relating to two different tranches of programming. One set of programmes were, if accessed through or with the permission of Sky as the rights holder, behind a paywall. Another, however – those deriving from the Sky Arts channel – were free-to-air and could be accessed without charge online. The Court had no difficulty in accepting that, in the case of the former, the copyright had been infringed. Whether Cherrie’s activity constituted copyright infringement in the latter, however, was naturally less clear-cut.
For the Reddit links to be an infringement under the Copyright, Designs and Patents Act 1988 (the “CDPA”), they had to communicate them to a ‘new’ public – that is to say, to an audience outside the original contemplation of the rights holder. This follows a line of European Union case law including ITV v TV Catchup, Svensson and GS Media, establishing that a communication to the public will only infringe copyright if it is either:
a) by a different technical means (e.g. provision via the internet of content broadcast on television); or
b) communicated to a new public.
Evidently, where Sky only authorised programmes to be available to paying Sky customers, Cherrie’s links were a communication to a new public not envisaged by Sky. However, with the Sky Arts programmes, access was already free to all; arguably, therefore, Sky already foresaw the general public accessing the material. Nevertheless, counsel for Sky submitted – and Lady Wolffe agreed – that the Reddit users were an audience outside that envisaged by Sky. There were two bases for this decision:
1: The T & Cs argument
2: The time limited availability
The Sky Arts broadcasts were not available to the public on a permanent basis through Sky – programmes came and went from the on-demand platform. Again, Lady Wolffe accepted that those who accessed Sky content through the Reddit links after it had been removed from Sky’s own platform would constitute a ‘new public.’
Interpretation of European law
The case appears to represent the first opportunity for the Scottish Court to consider whether online linking to content which is freely available elsewhere can constitute copyright infringement under the CDPA. However, the English Court has previously considered and applied the relevant EU law (in ITV, Svensson and GS Media). The trend of European and English case law has been to consider that where the copyright work has been made freely available online by a rights holder already, making it available via hyperlinks will not constitute a communication to a new public and therefore will not constitute an infringement.
On the face of the decision, the Scottish Court appeared to expand the application of the relevant principles established by the CJEU in Svensson and GS Media. Within the GS Media judgment, the ECJ observed that where a work ‘is already freely available to all internet users on another website with the authorisation of the copyright holders,’ further provision of a link to a website where that work can be accessed would not be a communication to a new public. It goes on to suggest that free communication over the internet inherently envisages all internet users as the public to whom the work is communicated. At first viewing, the Scottish Court’s decision would appear innately contradictory to that judgment. However, there are notable inconsistencies in the case law on the point and support for Lady Wolffe’s position can be found within the relevant judgments.
In GS Media itself, the content in question was freely available online without the consent of the rights holder and the Court emphasised the importance of such initial consent, as set out in Svensson. However, the comments in the GS Media judgment referred to above are not entirely consistent with the Court’s approach in Svensson. Of particular relevance to the Scottish case is the following passages in Svensson, at paragraphs 27 and 31:
 … given that access to the works [as published with the copyright holders consent] was not subject to any restrictive measures, all Internet users could therefore have free access to them
 On the other hand, where a clickable link makes it possible for users of the site on which that link appears 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, which was not taken into account by the copyright holders when they authorised the initial communication, and accordingly the holders' authorisation is required for such a communication to the public. This is the case, in particular, 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 does appear to provide substantial support to the Scottish Court’s position, particularly with respect to time limited availability. The ECJ in Svensson referred to work which is no longer available on the site where it was originally published, whilst Lady Wolffe’s decision appears to capture any content which might be removed in future, or the availability of which may be changeable. Taking the Scottish Court’s interpretation, rights holders could, theoretically, periodically remove content from their own websites for brief periods in order to show that any unauthorised republication deprived them of control of their content’s availability and thus communicated it to an unforeseen public. This would appear to stretch the point made by the ECJ and may undermine the fundamental requirement to communicate the work to a ‘new’ public which Svensson itself established.
However, the Scottish Court’s position in relation to the terms and conditions is less certain. It is unclear what level of ‘restriction’ was envisaged by the ECJ in Svensson and it is likely that the creation of an account, including terms and conditions, would not be considered by an English or European Court to be a sufficient restriction, in practical terms, on the breadth of the public to whom the content had been communicated. In fact, in the recent case of Bild Kunst, the ECJ suggested that a rights holder would need to employ ‘technological means’ of restricting access in order to show that not all internet users had been authorised to view the work. That being said, the very fact that there was a market for Mr Cherrie’s links, despite the free availability of the content to those willing to create a Sky account, might well be said to evidence the significance of such “restrictions” as Sky had in place and thus justify the Scottish Court’s interpretation of Svennson.
Considerations for English law
The Scottish Court’s judgment will have no direct impact in English law, but it does mark a potential divergence between the two jurisdictions’ interpretations of communications to a new public. Previously, English Courts would have been unlikely to consider the circumvention of standard terms and conditions sufficient to constitute a communication to a ‘new’ public under Svensson and rights holders seeking relief in England and Wales would likely have needed a more forceful technical restriction in place to protect their own content.
However, it is not impossible that tighter restrictions on hyperlinking to work already freely available to the public will find its way into English jurisprudence. It is worth noting that Arnold J has previously observed, in Paramount v Sky, that: ‘… I am not sure that the mere provision of a hyperlink amounts to communication to the public. It is clear from the evidence in this case, however, that many, if not most, of the users in question do not merely provide a link to the host site, they also upload the content to the host site. In my judgment, the combined effect of these acts does amount to communication to the public even assuming that the mere provision of a hyperlink does not’.
In the Scottish case, Cherrie was himself responsible for uploading the content, as well as providing the links. The Scottish Court did not, however, rely on that fact in its judgment – the fact that the link circumvented Sky’s own restrictions was considered sufficient; on the analysis given, it would not matter whether Cherrie had placed the programmes there on his own account or linked to content posted by someone else. Conversely, in England, it is unlikely that the mere linking would be considered an infringement. However, on Arnold J’s (as he then was) analysis in Paramount, a similar factual scenario might yet be deemed to infringe, on the basis that the alleged infringer’s liability extends beyond the mere link and into the active publication of the work.
Further to that judgment, the recent Court of Appeal decision in Tunein provides further hope to rights holders that a similar interpretation may be upheld in this jurisdiction. Though confirming that the appellate Courts should be reluctant to depart from retained EU jurisprudence in this area (albeit there is no legal impediment to their doing so), the leading judgment of Arnold LJ observed that the requirement for a technical restriction in Bild Kunst could not be ‘extrapolated beyond [the] context’ of the particular case in hand. On facts such as those in Cherrie, it appears that the English Courts may not impose a strict requirement for ‘technical measures’ in order to limit consent if, as in the case of Tune In, there is evidence that the public which was taken into account by the copyright holder when making a work available is very different to the public accessing the material on a potentially infringing site. While this does not necessarily mean that mere terms and conditions will be sufficient to ensure protection, the Tunein judgment provides an opening for exceptions other than technical measures to be considered by the Court on a case-by-case basis.
Possible impacts on rights holders
The judgment will doubtless be welcomed by broadcast rights holders, particularly in so far as it endorses a broadcaster’s right to control their product even after it has been made “freely” available in cash terms. Copyright holders can, on the Scottish Court’s analysis, legitimately expect to exercise control over such broadcasts by the judicious imposition of terms and conditions on free users, as well as by limiting the periods for which a given programme can be accessed gratis.
However, it should be noted that it is not always easy to identify the potential defendant and Sky managed to do so here in Cherrie. In such circumstances rights holders need to consider alternative courses of action such as applying for a blocking injunction under s.97a of the CDPA to make ISPs block access to such infringing sites.
Within the EU, there are increasing expectations that online platforms (such as Reddit) should be fully co-operative and diligent in removing and preventing infringing material which might appear on their sites. However, the EU’s own study on the liability of online platforms, completed earlier this year, concluded that the requirements do fall short of an obligation to monitor sites and fully self-police. As such, for the time being, it appears that rights holders will still need to put platforms on notice if they wish sites to be taken down and rights holders will still need to make efforts to protect their own content. As a final note, with respect to interim injunctions, it was noted in the Scottish Court’s judgment that Sky had first pursued non-litigious means of protecting their rights (i.e. seeking the removal of the content through YouTube and Reddit), but this had been unsuccessful (at least in respect of Reddit). This affected the Court’s view of where the balance of convenience lay in the application for interim injunctive relief – a test which is also applied by the English Court. Rights holders should therefore consider pursuing reasonable alternative options with the platforms before taking the matter to the Courts.