Linking and rethinking EU copyright: an academic perspective

Readers of this blog who have not been following the latest debates in EU copyright law may be surprised to learn that the hottest topic of the day is whether or not simply posting a hyperlink counts as a protected act. The European Court of Justice’s answer to this question has been both yes and no.

In a 2014 case, Nils Svensson and Others v Retriever Sverige AB, the court indeed ruled that placing a hyperlink to a copyright work qualifies as an act of communication with the public, making it a restricted act. However, since such links usually connect to content already publicly available online, no “new public” is being reached, meaning that – according to the court – there is no copyright infringement. That is, unless the hyperlink circumvents a paywall.

In another highly anticipated decision, the European Court opined last week that linking to unlawfully published content may also be restricted. The case concerned Geen Stijl (GS), a Dutch blog known for its controversial, provocative and often unsavory blog posts. GS had posted a hyperlink to leaked copyright-protected nude pictures of a Dutch starlet, which were posted unlawfully on an Australian web server. In its decision of September 8 the Court of Justice held that posting a link to copyright protected content knowing that the content was unlawfully published is an act of communication to the public. In the case of a person acting for financial gain such constructive knowledge is to be presumed. However, a private person posting a link without knowledge of the content’s illegal nature does not commit an infringing act.

The GS Media decision is to be criticized for its failure to provide legal certainty on an issue crucial to a well-functioning world wide web. How can one make sure that content freely available on the web is lawfully published? And when is a person acting for financial gain? While the courts and lawyers are contemplating the legal status of hyperlinks, the European Commission yesterday proposed a more comprehensive copyright reform package, including a proposal for a Directive “on copyright in the Digital Single Market”. Unfortunately, the Commission’s proposal fails to shed light on this important issue.

In the mean time a group of leading European copyright scholars, funded by Microsoft and led by myself, are debating the question of the proper scope of copyright on a more abstract level. Driven by concerns over the growing disconnect between the extent of copyright protection in Europe and today’s economic and technological realities, we have been working since 2014 on a joint legal and economic research project on exactly this topic: Reconstructing Rights. Rethinking Copyright’s Economic Rights in a Time of Highly Dynamic Technological and Economic Change.  

As the European Court’s recent case law illustrates, there is a lack of clarity and consistency around the economic rights granted to copyright holders. This raises serious obstacles for rights clearance, copyright enforcement and the free flow of information, and could hamper the roll-out of innovative content-related services. Our goal is to reexamine the core economic rights protected under EU copyright law, with a view to bringing these more in line with economic and technological realities, and ultimately, make a positive mark on copyright law and policy in the EU. We’ll be presenting the initial results from our work on 26 September, at a symposium hosted by Microsoft in Brussels.