EU Copyright Liability for Internet Linking

Author:Pekka Savola
Pages:139-150
SUMMARY

This article analyzes linking on the internet from the perspective of the EU copyright concept communication to the public in the light of recent developments in late 2016 and early 2017, especially the Court of Justice of the European Union judgments GS Media, Filmspeler, and Ziggo. The article highlights the doctrinal approach on communication to the public and de facto harmonization of certain ... (see full summary)

 
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EU Copyright Liability for Internet Linking
2017
139
2
EU Copyright Liability for Internet Linking
by Pekka Savola*
© 2017 Pekka Savola
Everybody may disseminate this ar ticle by electronic m eans and make it available for downloa d under the terms and
conditions of the Digital P eer Publishing Licence (DPPL). A copy of the license text may be obtain ed at http://nbn-resolving.
de/urn:nbn:de:0009-dppl-v3-en8.
Recommended citation: Pekk a Savola, EU Copyright Liability for Inter net Linking, 8 (2017) JIPITEC 139 para 1.
Keywords: Internet linking; copyright liability; EU; ECJ; GS Media; Filmspeler; Ziggo; new public
lications, specifically the uncertainty relating to the
extent of liability for the contents of the linked page,
the scope of pursuing profit when linking, and the
linker’s duties of care. The article also discusses two
aspects related to linking to legal publications; that
is, the conceptualization of the “new public” require-
ment as a regulated implied license and the condi-
tions of restricting access and circumventing restric-
tions.
Abstract: This article analyzes linking on the
internet from the perspective of the EU copyright
concept communication to the public in the light of
recent developments in late 2016 and early 2017, es-
pecially the Court of Justice of the European Union
judgments GS Media, Filmspeler, and Ziggo. The ar-
ticle highlights the doctrinal approach on communi-
cation to the public and de facto harmonization of
certain aspects of classic indirect liability. The article
analyzes open issues relating to linking to illegal pub-
A. Introduction
1
Article 3 of the Information Society Directive
(2001/29/EC) provides, based on Article 8 of the
World Intellectual Property Organization (WIPO)
Copyright Treaty (WCT) of 1996, that “Member
States shall provide authors with the exclusive right
to authorise or prohibit any communication to the
public of their works, by wire or wireless means,
including the making available to the public of their
works in such a way that members of the public may
access them from a place and at a time individually
chosen by them.”1
* LL.D. and Lic.Sc.(Tech), Market Court Judge. The views are
expressed in a researcher’s capacity. I would like to thank
Martin Husovec for the brainstorming and dialogue that led
to this article, and Taina Pihlajarinne and the reviewer for
helpful comments and feedback.
1 According to Recital 23 of the directive, “This right should be
understood in a broad sense covering all communication to
the public not present at the place where the communication
originates. This right should cover any such transmission or
retransmission of a work to the public by wire or wireless
2 The rst part concerns the original communication
to the public, the second part a “sub-right”, so-called
making available. The latter refers to providing
access for on-demand transmission, and it is
more extensive in this context because it applies
irrespective of transmission occurring. During the
WCT treaty preparations, making available was
referred to “offering” and “providing access to a
work”, and it was coined to prevent uploading and
making protected les accessible online.2 At the
time, there was no consideration of making available
covering hyperlinking to a work already legally or
illegally available elsewhere.3 Linking as such has
means, including broadcasting. This right should not
cover any other acts.” Per Recital 27, the mere provision of
physical facilities for enabling or making a communication
does not in itself amount to communication.
2 See e.g. Tsoutsanis: Why Copyright and Linking Can Tango,
9(6) JIPLP 495 (2014), pp. 499–500, 505; ALAI: Report and
Opinion on the Making Available and the Communication to
the Public in the Internet Environment – Focus on Linking
Techniques on the Internet (2013).
3 Ziggo (Opinion), C-610/15, EU:C:2017:99, para. 4 refers to

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