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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 this blog 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 IPKat readers may perhaps find it useful:


THE US anon said...

I think that your table needs another column, one that differentiates as to what "the public" means.

Is it not in some cases that the "the public" is an intended audience (i.e., those who payed the access fee to get behind the paywall) and NOT any other member of the other "general" public...?

TreatyNotifier said...

Just a small comment re. GS Media (which goes a bit too far for this table). The "do you need permission" question is only a ? in the pure copyright context. Both parties agreed a tort was committed when Geenstijl provided the link (and no questions were asked on that subject to CJEU); the remaining question however is if that action also constituted copyright infringement.

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