tag:blogger.com,1999:blog-5574479.post4097623655000041086..comments2024-03-19T06:27:47.905+00:00Comments on The IPKat: AG Wathelet: linking to unlicensed content should not be a copyright infringement per seVerónica Rodríguez Arguijohttp://www.blogger.com/profile/05763207846940036921noreply@blogger.comBlogger7125tag:blogger.com,1999:blog-5574479.post-64369697968475798622016-06-06T19:52:56.239+01:002016-06-06T19:52:56.239+01:00Surely AG Wathelet's approach would have the e...Surely AG Wathelet's approach would have the effect of ensuring that (contrary to the express provisions of the Directive) the making available right is exhausted (at least in relation to a section of the public) once the rightholder has authorised making available to that section of the public?<br /><br /> Paulinenoreply@blogger.comtag:blogger.com,1999:blog-5574479.post-19644813444417863652016-04-09T18:28:42.642+01:002016-04-09T18:28:42.642+01:00Both par. 16 and par. 18 rely on the right holder ...Both par. 16 and par. 18 rely on the right holder have given permission. The funny thing about Bestwater is that the right holder in that case definitely had not given permission (par. 4).<br /><br />I think the truth is that the CJEU did not really know what it was doing in Bestwater.<br /><br />If one must try to make sense of Bestwater, then one could reason that, apparently, the permission of the right holder is sufficient but not necessary.<br /><br />The real problem is of course that the CJEU's approach to "communication to the public" is irreparably broken.Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-5574479.post-79146825108431132182016-04-08T22:53:09.105+01:002016-04-08T22:53:09.105+01:00Can somebody explain me please how this position i...Can somebody explain me please how this position is compatible with par.16 of Bestwater? The par.16 explicitly makes reference at the "freely accessible" criteria like Svensson, but it adds in the same time "with the right holders authorization". For me, Bestwater clearly states that a work of mind is not "freely accessible" if the upload has been made without the right holders authorization. I've obviously read it wrong, but why ? Where?<br />Thomas.Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-5574479.post-80241904051289896382016-04-08T11:22:37.989+01:002016-04-08T11:22:37.989+01:00This seems to have the odd result that an action -...This seems to have the odd result that an action - in and of itself - may, <b>or may not</b> be something depending on whether OTHER actions (the actions of circumventing) are present.<br /><br />This conflates two different things.<br /><br />Be or not to be.<br />Do or do not.<br /><br />Shakespeare or Yoda, hyperlink is or is not. The Pigsnoreply@blogger.comtag:blogger.com,1999:blog-5574479.post-60692635200074658072016-04-07T19:58:02.111+01:002016-04-07T19:58:02.111+01:00My understanding is that the defendant here was fo...My understanding is that the defendant here was found liable in the Dutch court under secondary liability principles. While secondary liability in copyright has not been harmonized, in many national laws it appears a more sensible way of separating "egregious" cases from the kind of linking that should not fall within the scope of liability. fvlhttps://www.blogger.com/profile/01275601017570202502noreply@blogger.comtag:blogger.com,1999:blog-5574479.post-76094398650971998942016-04-07T19:31:55.952+01:002016-04-07T19:31:55.952+01:00"although it may be doubtful whether linking ..."although it may be doubtful whether linking to unlicensed content freely accessible on a third-party website should be always considered outside the scope of copyright protection"<br /><br />The question is not whether it should be considered outside the scope of copyright protection, but whether it should be covered by CP including MA. There are several other remedies to deal with such cases (intermediary / secondary liability + unfair competition + unfair market prices)... Online linking is as much a CP as it is to write in a sheet of paper the physical or digital location of a work<br /><br />Ppzzzz<br /><br />Ppzzzzznoreply@blogger.comtag:blogger.com,1999:blog-5574479.post-50255859204982532362016-04-07T17:55:56.942+01:002016-04-07T17:55:56.942+01:00Hello, thank you for this report and related comme...Hello, thank you for this report and related comments, Eleonora! Could it be possible to explore a different path rather then saying that linking falls outside the scope of copyright (as it is even suggested by Directive 2000/31/EC where linking is not included among the ISPs' tipified activities)? Could we say that linking may infringe copyright and the assessment of the infringement should relate to the three-step test or the application of a fair use clause? This latter question being inspired by parraphs 78 and 79 of the AG's opinión? Thank you.Anonymousnoreply@blogger.com