|Daydreaming Priscilla spent Valentine's |
day thinking about Svensson
The case is a tough one and its outcome promises to have a significant impact on EU Member States, as similar issues are currently under consideration also at the national level.
|Professor Lionel Bently|
The legal regulation of hyperlinking thus carries with it enormous capacity to interfere with the operation of the Internet, and therefore with access to information, freedom of expression, freedom to conduct business, as well – of course – with business ventures that depend on these types of linkages. Europe has developed a significant sector of SMEs, many of whose web operations depend on the use and provision of links. The Court must not under-estimate the importance of its ruling in this case."
|There are other instances when linking |
does not necessarily involve an act of communication
to the public (and does not require
an internet connection either)
(a) Hyperlinks are not communications because establishing a hyperlink does not amount to "transmission" of a work, and such transmission is a pre-requisite for "communication";
(b) Even if transmission is not necessary for there to be a "communication", the rights of the copyright owner apply only to communication to the public "of the work", and whatever a hyperlink provides, it is not "of a work";
(c) Even if a hyperlink is regarded as a communication of a work, it is not to a "new public."
However, the Opinion leaves open the possibility that in some circumstances creating hyperlinks might give rise to liability, or be part of a series of acts that gives rise to liability. In fact, as is clear from national case-law, different forms of hyperlinking may give rise to accessory liability (particularly in respect of knowingly facilitating the making of illegal copies); liability under unfair competition law; infringement of moral rights; and possibly for circumvention of technological measures. Only the last of these has been the subject of harmonization at a European level, and thus falls within the competence of the Court of Justice."
As highlighted by Jeremy on the IPKat, the outcome of this case is keenly awaited by all those good souls who are involved in blogging-related activities. As bloggers, we hyperlink all the time and we indeed consider hyperlinks as tools which allow us to either provide appropriate references which support or elaborate on our statements or direct readers towards items which they can find interesting.