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  Earlier this year, The IPKat   reported   on the judgment of the Grand Chamber of the Court of Justice of the European Union (CJEU) in   VG Bild-Kunst , C-392/19 , an important case concerning contractual restrictions to linking under EU copyright law (on that occasion, I also updated my linking table: see   here ). The CJEU explicitly ruled – 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  and its application to online scenarios, as well as for the interpret...

  A week ago, The IPKat   reported and commented   on the important   decision   of the Grand Chamber of the Court of Justice of the European Union (CJEU) in   VG Bild-Kunst , C-392/19.  In that judgment, the CJEU admitted the possibility for rightholders to restrict linking  by contract , provided that any such restrictions are imposed and/or implemented through the adoption of effective technological measures, in accordance with Article 6(1) and (3) of the  InfoSoc Directive . According to the CJEU, this requirement - which, as I wrote, might raise questions of compatibility with the no formalities rule in the  Berne Convention  - is prompted by the need to "ensure legal certainty and the smooth functioning of the internet". Readers may be aware that, over the past few years, I have developed IP and study aid materials (they can all be accessed  here ) primarily aimed at my students. Among them, there was a table - first publ...

  Can a rightholder restrict linking by contract, eg by imposing the adoption of technological measures?  This, in a nutshell, is the core issue at the heart of the referral to the Grand Chamber of the Court of Justice of the European Union (CJEU) in  VG Bild-Kunst , C-392/19, which was  decided  this morning. The Court answered in the affirmative. The referred question was: Does the embedding of a work – which is available on a freely accessible website with the consent of the rightholder – in the website of a third party by way of framing constitute communication to the public of that work within the meaning of Article 3(1) of [the  InfoSoc] Directive 2001/29/EC  where it occurs through circumvention of protection measures against framing taken or instigated by the rightholder? The ruling is important because it addresses an issue that was left outstanding after a string of CJEU decisions, starting as early as the 2014 ruling in  Svensson  ...

The IPKat's favourite type of link The IPKat is back with the 6th instalment of the DSM Directive ( Directive 2019/790 ) series  [previous episodes  here ,  here ,  here ,  here , and  here ] . Today's topic is once again Article 15 and the new press publishers' right.  Among other things, the protection granted under Article 15(1), that is the right of EU-based press publishers to control the reproduction and making available for online use of their press publications by information society service provider s, " shall not apply to acts of hyperlinking " (Article 15(1), subparagraph 3). Recital 57 substantially states the same thing, by providing that " [t]he rights granted to publishers of press publications should not extend to acts of hyperlinking ." Hyperlinks and the press publishers' right: from the original proposal to the final version The final version of the directive is not dissimilar from  the o...

A few weeks ago this blog  reported  on the judgment of the German Federal Court of Justice which decided that the presumption of knowledge envisaged by the Court of Justice of the European Union (CJEU) in  GS Media   [Katposts  here ]  for for-profit link providers would not be applicable to search engines due to their importance to the functioning of the internet. I have been made aware that this decision is not an isolated instance, and a similar line of reasoning can be found also in another recent German judgment, ie the one of the Regional Court of Hamburg issued earlier this year ( 308 O 151/17 ). Also this ruling shows a  certain  disagreement with recent CJEU case law on the right of communication to the public, including in the linking context, and warns against the dangers of intending the  GS Media  presumption of knowledge in too a broad sense. Background The decision orginated in the context of proceedings br...

In its 2016 decision in   GS Media , C-160/15   the Court of Justice of the European Union (CJEU) sought to clarify under what conditions the provision of a link to a work protected by copyright made available on a third-party website (where it is freely accessible) without a licence from the relevant rightholder falls within the scope of the right of communication to the public within Article 3(1) of the   InfoSoc Directive . In its decision the CJEU held that whether linking to unlicensed content falls within or outside the scope of Article 3(1) of the InfoSoc Directive depends – crucially – on whether the link provider has a profit-making intention or knowledge of the unlicensed character of the work linked to. This  new article of mine  - which will be published in  Common Market Law Review  - assesses the implications of the  GS Media  decision in respect of linking, and - more generally - the construction of the right of com...

Britt Dekker for  Playboy Linking to unlicensed content? This is not in itself an infringement of Article 3(1) of  Directive 2001/29 (the  InfoSoc Directive ), said this morning Advocate General (AG)   Melchior Wathelet   in his  Opinion  in  GS Media , C-160/15. This is big news, in that the AG advised the Court of Justice of the European Union (CJEU) do depart significantly from the jurisprudence inaugurated with the (in)famous 2014 decision in  Svensson   [ here  for Kat-coverage] . Background As readers will remember, this reference for a preliminary ruling from the Dutch Supreme Court has arisen in the context of litigation between the publisher of  Playboy  (Sanoma) and GS Media, over provision by the latter - through  GeenStijl.nl  - of hyperlinks to other websites hosting leaked photographs of Dutch starlet  Britt Dekker . These photographs were due for publication in a 2011 issue o...