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.