19 Pages Posted: 18 Feb 2013 Last revised: 25 Feb 2013
Date Written: February 15, 2013
In this Opinion, the European Copyright Society (ECS) puts on record its views on the questions before the Court of Justice of the European Union in Case C-466/12, Svensson, which relate to the hugely important question of liability of those who create hyperlinks to material on the Web without the permission of the copyright holder in that material. The opinion argues that hyperlinking in general should be regarded as an activity that is not covered by the right to communicate the work to the public embodied in Article 3 of Directive 2001/29. The Opinion offers three reasons for this conclusion: firstly, that hyperlinks are not 'communications' because establishing a hyperlink does not amount to 'transmission' of a work, and such transmission is a pre-requisite for 'communication'; secondly because the rights of the copyright owner apply only to communication to the public 'of the work', and whatever a hyperlink provides, it is not 'of a work'; and thirdly because, even were a hyperlink to be regarded as a communication of a work, it is not to a 'new public.' This does not mean that creating hyperlinks in no circumstances involves liability. In fact, as is clear from national case-law, different forms of hyperlinking may indeed give rise to the following forms of liability, such as accessory liability (particularly in respect of knowingly facilitating the making of illegal copies); for unfair competition; and for infringement of moral rights; and possibly for circumvention of technological measures. Only the last of these has been the subject of harmonization at a European level, and thus falls within the competence of the Court of Justice.
Keywords: copyright, hyperlinks, Article 3, copyright directive
JEL Classification: K3, K39
Suggested Citation: Suggested Citation
Bently, Lionel A. F. and Derclaye, Estelle and Dinwoodie, Graeme B. and Dreier, Thomas and Dusollier, Severine and Geiger, Christophe and Griffiths, Jonathan and Hilty, Reto and Hugenholtz, P. Bernt and Janssens, Marie-Christine and Kretschmer, Martin and Metzger, Axel and Peukert, Alexander and Ricolfi, Marco and Senftleben, Martin and Strowel, Alain M. and Xalabarder, Raquel, The Reference to the CJEU in Case C-466/12 Svensson (February 15, 2013). University of Cambridge Faculty of Law Research Paper No. 6/2013. Available at SSRN: https://ssrn.com/abstract=2220326 or http://dx.doi.org/10.2139/ssrn.2220326