In its decision the CJEU held that the owner of a website may, without the copyright holder’s authorisation, redirect internet users via hyperlinks to protected works that are freely accessible on another site.
The CJEU stated that "the provision on a site of a clickable link to a protected work published and freely accessible on another site has the effect of making that work available to users of the first site and that it therefore constitutes a communication to the public. However, since there is no new public, the authorisation of the copyright holders is in any event not required for such a communication to the public."
However, the decision did not add much to what "freely accessible" might mean. In particular:
|"Freely available"? |
Well, at least Archie thinks so
Besides technical circumvention, another issue raised but not addressed at any particular length by the CJEU is whether also non-compliance with the terms and conditions of a certain website might be relevant to considering a work as not freely available.