Although there were some suggestions to include a general exception for user-generated content (UGC) in Hong Kong's Copyright (Amendment) Bill 2014, this idea has been rejected. The Bill only contains new provisions on exceptions where it is truly needed for the freedom of expression of UGC creators; for parodies and quotations. This short article presents seven reasons for which the drafters have chosen that right solution that may guarantee harmony with the relavant international norms.

[This is a slightly corrected version of the article originally uploaded on 2014-05-05 without any real substantial change. Thus, the summary description below has not been modified either.] It is a widespread opinion that the CJEU’s Svensson judgment „has saved the Internet” (because it has maintained the possibility of using hyperlinks). The judgment might also offer chances for rightholders to exploit their works and objects of related rights in the online environment, since it has clarified that the use of “clickable links” qualifies as an act of making available to the public. Unfortunately, those chances are limited because the fundamental problem of the CJEU’s “established case law” on the right of communication to the public and the right of making available to the public – namely, that it is based on the „new public” and „specific technical means” theories – has not been eliminated. The “new public” theory – as outlined in the Court’s SGAE ruling – is in conflict with the international treaties and the EU directives. The theory was adopted because the CJEU – recognizing WIPO publications as a reliable source to clarify the concept of communication to the public – relied exclusively on an old 1978 WIPO Guide to the Berne Convention (and misinterpreted it) rather than (i) on the text of the relevant norms and of their “preparatory work”; (ii) on the thorough analysis made in authoritative copyright treatises; (iii) on the interpretation adopted by a series of competent WIPO committees of governmental experts; and (iv) on the new 2003 WIPO Guide reflecting that interpretation (refuting the “new public” theory). In the TVCatchup judgment, the Court tried to correct the “new public” theory by introducing the “specific technical means” theory (according to which the right of communication to the public applies where there is no new public but the communication is made by such new – different – means); but this theory is not in accordance with the international and EU norms either. In the Del Corso ruling, the CJEU got into an even more obvious conflict with these norms by subjecting the application of the right of communication to the public to the criterion of profit-making purposes. In Svensson, the Court made a further correction in the combined “new public” and “specific technical means” theories by ruling that the right of making available to the public through hyperlinks (clickable links) apply also where rightsholders restrict access and the restriction is circumvented. The chances of rightholders to use licensing methods facilitating due exploitation of their works and objects of related rights depend on how broadly the concepts of “restriction” and “circumvention” are interpreted. However, the criterion of “restriction of access” may also be regarded as a sort of formality to be fulfilled for obtaining protection of the right of making available. It would be desirable to establish an adequate balance by saving both the Internet and copyright on bases other than the legally defective concepts of “new public”, “specific technical means” and “restriction of access”. Alternatives might be the introduction of a new exception or limitation or the application of a duly developed and finely tuned implied licensing doctrine. Since the adoption of the “new public” theory was due to the fact that the CJEU had not been appropriately informed on the truly decisive sources of interpretation of the concepts and rights of communication to the public and making available the public, the chain of controversial judgments on these concepts and rights is a further proof that the preliminary ruling system requires revision and correction.

The paper reviews the various questions concerning the concept and right of communication to the public in the request for preliminary ruling in the GEMA v. REHA Training case stressing it offers a good opportunity for a review and consolidation of the case law of the CJEU on the right of communication to the public. As regards the „new public” criterion introduced by the CJEU as a condition of applicability of the right of communication to the public, the paper describes and discusses how the Court based this theory exclusively some comments in a nearly 40-year-old Guide of WIPO of a general introductory nature by considering it as a reliable source, when even that publication written in an “easy style” did not suggest the applicability of such a criterion and when the truly reliable sources – the text and „preparatory work” of the Berne Convention as duly interpreted, the resolutions and decisions of the competent WIPO bodies, the authoritative treatises on the Convention, as well as a new WIPO Guide – all make it clear that the application of such a criterion would be in conflict with the Convention. It is pointed out that the adoption of the erroneous “new public” theory took place because the parties and other participants in the cases concerned had not identified those decisive sources and, thus, the Court was not duly informed. The paper also discusses the reasons for which the criteria applied by the Court in the SCF v. Del Corso case (to which the request for preliminary ruling in the REHA Training case refers) concerning the profit-making nature of the acts of communication and the active attitude of the members of the public as conditions of the application of the right of communication to the public are not in accordance with the Berne Convention and the EU Directives either. The paper suggests that the non-application of the right of communication to the public in the SCF v. Del Corso case might only be in accordance with the treaties and the acquis if it were regarded as to be based on the de minimis principle by having taken into account the various specific aspects of the case, not as definitional criteria of the concept of communication to the public but only as justifying in the given concrete situation, when considered together in a cumulative manner, an exception to the application of the right of communication to the public. It is added that, in the REHA Training case, the same specific aspects justifying such a de minimis exception are not present.

The paper analyses the Advocate General’s opinion presented in the Stichting Leenrecht case (Case-174/15), inter alia, in the light of the UsedSoft and Allposters cases ( Case C-128/2011 and Case C-419/13 ). On the bases of the analysis it seems that the AG’s legal arguments – on the basis of which he suggests that what is called „e-lending” is covered by the provisions of the Rental, Lending and Related Rights Directive on lending – are badly founded. As regards the AG’s legal-political arguments stressing the importance of library services, it is pointed out that, although they are valid, also a number of other public and private interests should be taken into account to consider whether or not there may be a need for legislative intervention concerning the complex issue and, if it may be the case, in which way.

In the short paper – based on an optimistic reading of the CJEU’s subsequent decisions on the concept and right of communication to the public – it is reviewed how the Court has made honest attempts to try to neutralize the negative effects of the badly founded „new public” criterion (adopted as a result of certain defective aspects of the current preliminary rulings system that do not guarantee fully and duly informed judgments).