[x-pubpol] European Copyright Society issues opinion on Svensson hyperlinking case

[Joly MacFie]

http://kluwercopyrightblog.com/2013/02/15/european-copyright-society-issues-opinion-on-svensson-hyperlinking-case

*by Bernt Hugenholtz *

Institute for Information Law (IViR) <http://www.ivir.nl/about.html>

The European Copyright Society, a group of prominent European scholars,
today issued an opinion on the Svensson case (Case
C-466/12)<http://curia.europa.eu/juris/document/document.jsf?text=&docid=130286&pageIndex=0&doclang=EN&mode=lst&dir=&occ=first&part=1&cid=911746>,
which is currently before the European Court of Justice. The case, which
was referred to the Court by the Swedish Court of Appeal (Svea hovrätt) on
18 October 2012, raises the important question whether setting a hyperlink
to a copyright protected work amounts to ‘communication to the public’
within the meaning of Article 3(1) of the Information Society Directive.

In a detailed, 17-page
opinion<http://www.ivir.nl/news/European_Copyright_Society_Opinion_on_Svensson.pdf>the
European Copyright Society argues that the answer to this question
should be a resounding *no*. According to the Society, “The importance of
this particular reference should be evident to the Court. Although
hyperlinking takes many forms and has multiple functions, there can be no
doubt that it is the single most important feature that differentiates the
Internet from other forms of cultural production and dissemination.
Hyperlinking is intimately bound to the conception of the Internet as a
network, and hyperlinks constitute paths leading users from one location to
another. […] The legal regulation of hyperlinking thus carries with it
enormous capacity to interfere with the operation of the Internet, and
therefore with access to information, freedom of expression, freedom to
conduct business, as well – of course – with business ventures that depend
on these types of linkages.”

Following an in-depth analysis of the right of communication to the public,
the Society concludes: “If hyperlinking is regarded as communication to the
public, all hyperlinks would need to be expressly licensed. In our view,
that proposition is absurd. “




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