Why Copyright and Linking Can Tango

Alexander Tsoutsanis, DLA Piper en IViR, Why Copyright and Linking Can Tango. Alexander Tsoutsanis heeft naar aanleiding van dit artikel en het Svensson arrest gesproken op de Fordham IP Conference in New York van 25 april 2014.

"While our offline environment is all about mortar and bricks, online on the internet is all about clicks. Clicking away is what surfing the web is all about, everyday. Clicking on buttons, windows, but often also on links: hyperlinks, deep links, framed links and embedded links. Yet, the legal status of linking is unclear. No less than three cases are pending before the Court of Justice of the European Union (CJEU). The facts and questions in each case are different: from the admissibility of deep linking to news articles (Svensson), framed linking to streams of sports matches (C More), to embedded linking of a YouTube video (BestWater). The theme and questions are the same: does linking fall within the scope of copyright protection? And, if so, does unauthorized linking constitute copyright infringement? [...]

In summary, it is clear from the above that the broad umbrella provision of Article 3 (1) does not merely cover the narrow traditional notion of 'communication' but also extends to the digital concept of 'making available', in which the mere offering of a work enabling on-demand access is sufficient. Both the texts of Article 3(1) and its preparatory documents above do not render this 'making available' right contingent on any requirement of 'transmission'. To the contrary, the Community legislator expressly holds that the critical act is in the 'making available' or 'offering' of the work, which precedes the stage of its actual 'on-demand transmission'. The Commission also adds that it is irrelevant where such retrieval or transmissiona ctually takes place. [...]

By not putting 'linking' under the umbrella of 'making available to the public', the European Copyright Society forces both creators and consumers of creative content to seek protection under the general laws of Member States which differ by country. It is clear that such a solution is at odds with the policy objectives described above, resulting in lack of harmonization and legal certainty. Ignoring those policy objectives does not only affect right holders. It also deprives users of the ability to push back over-broad protection by being able to seek refuge under the many statutory limitations of Article 5 of the same directive. General laws are simply not...