Sunday 11 October 2015

Do you need permission to link? Here's my table attempting a summary of recent CJEU case law

Earlier this week the IPKat reported on the latest reference for a preliminary ruling to the Court of Justice of the European Union (CJEU) on hyperlinking and copyright.

Following the decision in  Svensson [here and hereand the adoption of the 'new public' criterion, the Court has further elaborated upon this very issue in BestWater, and will have the chance to say more when it decides GS Media and Filmspeler.

The answer to the question whether linking falls under the scope of the right of communication to the public as per Article 3 of the InfoSoc Directive depends on whether the content one links to is freely accessible and (possibly) also on whether its initial communication has been authorised by the relevant rightholders.

Yesterday I created a table attempting to summarise recent CJEU case law on linking. It is by no means exhaustive and, while created for my students at the University of Southampton, I thought that also some 1709 Blog readers may perhaps find it useful:

1 comment:

Anonymous said...

Thanks for the useful table Eleonora.
I am interested that you conclude that the Opinion of the Court in Bestwater (which I have only seen in German and French) means that it is necessary that permission is obtained where the work is lawful but the host site is not freely accessible. The Opinion was very short and most of it was taken up in dealing with the main part of the referral which was to do with framing, but surely the facts in the case were that Mebes and Potsch (defendants) had accessed a copy of Bestwater's video on YouTube (a publicly accessible site) but that the copy had not been posted there by Bestwater or with their permission (see last sentence of [4] of the Opinion). In other words the opposite conditions to those which you show in the table. The Court appears at [18] to say that permission is not required although I may have misunderstood this bit since the paragraph begins by talking about whether or not communication to the public has occurred. In any event the court appears not to have taken into account the fact that the posting on Youtube was not authorised - see [16].
To my mind the only significant point which comes out of the Opinion is that framing does not, in and of itself, amount to something different from linking. See [19] and the final ruling.