Linking and Copyright in the Shade of VG Bild-Kunst

(2021) 58(6) Common Market Law Review 1875-1894

Faculty of Law, Stockholm University Research Paper No. 99

19 Pages Posted: 8 Sep 2021 Last revised: 9 Aug 2022

See all articles by Eleonora Rosati

Eleonora Rosati

Stockholm University, Faculty of Law

Date Written: August 19, 2021

Abstract

In VG Bild-Kunst, the Grand Chamber of the ECJ has expressly held, 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 2001/29 and its application to online scenarios, as well as for the interpretation of provisions in other EU copyright directives, including the DSM Directive 2019/790. 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.

Keywords: internet, copyright, CJEU, VG Bild-Kunst C-392/19, communication to the public, InfoSoc Directive, technological protection measures, linking, framing

Suggested Citation

Rosati, Eleonora, Linking and Copyright in the Shade of VG Bild-Kunst (August 19, 2021). (2021) 58(6) Common Market Law Review 1875-1894, Faculty of Law, Stockholm University Research Paper No. 99, Available at SSRN: https://ssrn.com/abstract=3907820

Eleonora Rosati (Contact Author)

Stockholm University, Faculty of Law ( email )

S-106 91 Stockholm
Sweden

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