Swefilmer case might follow Sanoma / Playboy into the rabbit hole

Followers of the intracacies of copyright law will know that a core requirement of infringement is the communication to a new public.

The global nature of the internet however can be taken to mean that once something is available anywhere online it is therefore not an offence to re-publish it.

In the current Swefilmer case leave has just been granted to apply to the ECJ for a ruling on this point and the case has been suspended.

If this goes the way of Sanoma / Playboy the rights holders are going to need to adjust their approach to IP protection and allocate resources to tracing and stopping the "first seeders" rather than the aggregators even though it is mass distribution that really does the damage to exclusivity.

Linking to Pirate Content may not be communication to a new public

Perhaps a slightly dull headline but in the world of copyright infringement and piracy this preliminary ruling today from the European Court of Justice CLICK HERE FOR THE FULL TEXT makes life more difficult for the copyright owners.

In essence, and only on the facts of this case, if material is freely available already, then no new communication to the public occurs when it is published / linked to again without permission. This echoes Svensson and Bestwater.

Without a communication to the public there is not on the face of it copyright infringement. Other remedies such as trademark infringement and conspiracy to defraud still stand however.

This is not really ideal particularly when it does not seem to matter if it is obvious that the "source" material is not itself authorized. Copyright legislation really needs a bit of a re-boot.