How Playboy Photos Compromised EU Copyright Law: The GS Media Judgment
20(11) Journal of Internet Law 11 (2017)
6 Pages Posted: 22 Feb 2017 Last revised: 2 Jun 2017
Date Written: February 22, 2017
Startling at it may sound in the second decade of the 21st century, hyperlinking has lately been at the forefront of the copyright and technology debate in the EU. The latest installment in the hyperlinking saga was the CJEU’s preliminary ruling in the GS Media case. The fundamental question in this reference was whether the act of hyperlinking to a freely accessible website where a copyright-protected work was made available without the rightholder’s authorization should be considered an infringement of the right of communication to the public laid down in Article 3(1) of the Information Society Directive. In other words, the CJEU was asked whether the foregoing behaviour falls within the scope of the broad exclusive right of communication to the public, which includes the right of making available online.
This article aims at briefly examining the GS Media judgment. Though it raises a series of new questions – which the CJEU is likely to be prompted to answer in future references – the ruling’s ultimate result is a net cast too wide. This net is likely to catch uses of works that, besides not causing any discernible harm to rightholders, are essential for the normal functioning of the Internet. Under the guise of a Solomonic judgment, GS Media will have negative effects for the access and dissemination of information in the online world.
Keywords: EU Copyright Law, Communication to the Public, Hyperlinking, GS Media
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