DisCo readers may remember that, last February, my colleagues Matt Schruers and Jakob Kucharczyk explained that Europe’s highest court, the Court of Justice of the European Union (CJEU), would have to rule on a case about hyperlinks that could decide the fate of the World Wide Web in Europe. They were not joking around.
Well, yesterday the CJEU published its ruling on GS Media (C-160/15) – and it’s as bad as we feared it could be. But let’s take a step back first.
Under EU copyright law, the “communication to the public” of a work (comprised of two cumulative criteria, an “act of communication” to “a public”) is an exclusive right of the rights holder. Therefore, over the past few years, the CJEU tried painfully to answer the question of whether posting a link violates copyright law.
To sum up quickly, the CJEU ruled several years ago in a case called Svensson that links – i.e., the single most important feature of the Internet – were within the scope of copyright protection, as they were “acts of communication”. However, the case dealt with a situation where a website was linking to legal content, freely accessible and posted with the authorisation of the rights holder. Therefore, the Court concluded logically that no copyright infringement had taken place as linking to this content did not communicate it to “a new public”. (For more details, please see our detailed analysis here and here). But one crucial question was left open – what about linking to content posted online without the authorisation of the rights holder?