Why Copyright and Linking Can Tango

Abstract

This article discusses the legal status of links, in connection with the pending cases before the Court of Justice of the European Union in Svensson, C More and BestWater. Hyperlinks, deep links, framed links and embedded links are discussed.

It focuses on the Opinion of the European Copyright Society on the Svensson case. The ALAI Opinion is also briefly discussed.

This article proposes nine angles as part of the multi-factor test to determine whether linking is actionable under European copyright law: four policy arguments (harmonization, high level protection, technology neutral, authorization) and five factors (‘making available’, ‘to the public’, ‘new public’, ‘intervention’ and ‘profit’).

The author concludes that properly balancing those nine factors can ensure that copyright and linking can tango, in step with existing policy goals and case-law, allowing linking in some situations, while requiring separate authorization in others.

This article was published on 3 Feb. 2014 on the JIPLP blog of the Journal of Intellectual Property Law & Practice, approx. two weeks before the Svensson decision of the CJEU came out. Various points in the article also echoe in the Court's decision. This paper was also presented at the Fordham IP Conference 2014, New York, 25 April 2014.

Keywords: Svensson, European Copyright Society, ALAI, copyright, internet, link, linking, author, link, hyperlink, deeplink, embedded link, framed link, auteursrecht, openbaarmaking, streaming, copyright infringement, directive, Information Society, Fordham, enforcement, intellectual property, Bently, IViR

JEL Classification: K00, K10, K13, K14, K19, K20, K29, K30, K33, K39, K40, K41, K42, K49, A12, D63, D74, E61, L50, L51