Not yet tired of linking and copyright? More on the CJEU decision in VG-Bild Kunst

Earlier this year, The IPKat reported on the judgment of the Grand Chamber of the Court of Justice of the European Union (CJEU) in VG Bild-Kunst, C-392/19, an important case concerning contractual restrictions to linking under EU copyright law (on that occasion, I also updated my linking table: see here).

The CJEU explicitly ruled – for the first time – that linking to a copyright work lawfully published on a third-party website may be restricted through contract and not solely through technical restrictions on access (for instance, a paywall). To this end, however, the concerned rightholder is required to adopt or mandate the adoption of effective technological measures. Lacking these, an unauthorised act of linking shall not be infringing.

The judgment has important implications for the construction of the right of communication to the public in the InfoSoc Directive and its application to online scenarios, as well as for the interpretation of provisions in other EU copyright directives, including the DSM Directive. It also raises questions regarding the compatibility of the Court’s reasoning with key tenets of copyright law, such as the no formalities rule in the Berne Convention, and the prohibition of exhaustion of this economic right.

Readers interested in this area of copyright may find a more extensive analysis of the implications of the decision in this recent contribution of mine entitled Linking and Copyright in the Shade of VG Bild-Kunst and available - for the time being - on SSRN. Later this year, it will be published by Common Market Law Review.

Any comments are of course welcome!