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It was revealed last week that the decision in Case C-466/12 Svensson, a reference to the Court of Justice of the European Union (CJEU) for a preliminary ruling, is to be handed down on Thursday 13 February. The questions on which the CJEU has been asked to rule are as follows:
If anyone other than the holder of copyright in a certain work supplies a clickable link to the work on his website, does that constitute communication to the public within the meaning of Article 3(1) of Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society?"Why copyright and linking can tango" addresses, among other things, the issues on which the CJEU is currently cogitating. As the abstract explains:
Is the assessment under question 1 affected if the work to which the link refers is on a website on the Internet which can be accessed by anyone without restrictions or if access is restricted in some way?
When making the assessment under question 1, should any distinction be drawn between a case where the work, after the user has clicked on the link, is shown on another website and one where the work, after the user has clicked on the link, is shown in such a way as to give the impression that it is appearing on the same website?
Is it possible for a Member State to give wider protection to authors' exclusive right by enabling 'communication to the public' to cover a greater range of acts than provided for in Article 3(1) of Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society?
• This article discusses the legal status of links, in connection with the pending cases before the Court of Justice of the European Union in Svensson, C More and BestWater. Hyperlinks, deep links, framed links and embedded links are discussed.You can read "Why copyright and linking can tango" here or download it here.
• It focuses on the Opinion of the European Copyright Society on the Svensson case. The ALAI Opinion is also briefly discussed.
• This article proposes nine angles as part of the multi-factor test to determine whether linking is actionable under European copyright law: four policy arguments (harmonization, high level protection, technology neutral, authorization) and five factors (‘making available’, ‘to the public’, ‘new public’, ‘intervention’ and ‘profit’).
• The author concludes that properly balancing those nine factors can ensure that copyright and linking can tango, in step with existing policy goals and case-law, allowing linking in some situations, while requiring separate authorization in others.
The author of this article is Alexander Tsoutsanis. Alexander is a senior researcher and lecturer in intellectual property law at the Institute for Information Law (IViR) at the University of Amsterdam, where he is responsible for the 'Intellectual Property Law & Practice' course. He is also a Legal Director at DLA Piper and has litigated before the Court of Justice, General Court and the Benelux Court of Justice. Further biographical and bibliographical details of the author can be accessed here.
The article will be published in JIPLP in due course.
Three cheers to Alexander for setting out just why the European Copyright Society's opinion was so misguided: communication to the public has always included the act of making available alone, and it does not matter (except perhaps as to damages) whether anyone actually accesses the work made available. No transmission is required!
ReplyDeleteIf one is to provide a link to a work, how is one to know whether that work has been made available there legally?
ReplyDeleteThat is to say, how is one to know whether the owner of the site is in fact also the owner of the work, if one can claim to be anyone wants to claim to be when registering a site?
What if the site to which one links is not the one on which the work resides, but merely appears to be the site on which it resides, by virtue of a clickable link, or automatically activated link, to yet another site?
In other words, what if a chain of links is made, and the Internet is a chain of links, and only the last site is illegal, does every link in that chain become illegal?
These are not the questions at hand here, of course, but ultimately these, too, will need to be answered.
I suspect that in doing so we will discover what many have already prophesied, that copyright does indeed "break the Internet". That is, the Internet is a copyright free zone, and anything found on it is fair use, or in the public domain, if you prefer.