Why copyright and linking can tango: a pressing need to read

"Why copyright and linking can tango" is the title of an article that has been accepted for publication in JIPLP and which the Editor is taking the unusual step of making available to readers via this weblog in its raw, unset form, even before it has been set for publication, because it has suddenly become so dramatically topical.

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?

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?

"Why copyright and linking can tango" addresses, among other things, the issues on which the CJEU is currently cogitating.  As the abstract explains:

• 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.

• 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.

You can read "Why copyright and linking can tango" here or download it here.

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.

Making available, communication to the public and linking measures: the ALAI's view

The following is a short explanation by Victor Nabhan, President of ALAI, which provides some background to that organisation's recent and highly-publicised pronouncement on a matter of acute importance both to the intellectual property community and beyond it:

"The International Literary and Artistic Association (ALAI) is an independent learned society dedicated to studying and discussing legal issues raised by literary and artistic property in the modern world. ALAI’s membership brings together eminent copyright scholars and practitioners. Its Executive Committee holds meetings twice a year and deals with topical issues at each of them. At its meeting in March 2013 the Committee decided to form a study group to analyse the rights of making available to the public and communication to the public with particular reference to linking techniques. The Study Group’s Report and Opinion were unanimously approved by the Executive Committee at its meeting in Cartagena, Colombia, on 16 September 2013.

The Report and Opinion were worked out recognizing that the use of linking techniques, be it hypertext links or inline links, is prominent in almost any Internet activity, thus fundamental for the well-functioning of the web environment. Just as important is the fact that links may be used for addressing protected works and related subject matter to the public. The Report and Opinion is therefore built on a need to clarify how and to what extent linking measures may be embraced by the fundamental making available or communication to the public rights".

The ALAI's  Report and Opinion on the making available and communication to the public in the internet environment – focus on linking techniques on the Internet can be read in full here

JIPLP proposes to follow closely the judicial and legislative developments that attend this subject and welcomes Current Intelligence notes and articles that discuss their many legal, economic and practical ramifications. Submissions from all sectors of industry and commerce are welcome.