Professor dr. juris Ole-Andreas Rognstad The Unbearable Lightness of Linking NOBOS, 11 November 2016 Professor dr. juris Ole-Andreas Rognstad

Linking – current legal situation The lawfulness of links depends on whether or not linking is considered as an act of ‘communication to the public’ My opinion: Not the ideal way of regulating the problem Still: The case law of the Court of Justice of the European (CJEU) is normative, also for the Nordic countries

CJEU case law: Central elements Element 1: ‘The new public rationale’ Links to works that are freely made available on the Internet with the right holders’ consent are lawful Fall outside the scope of the right of communication to the public because they are not communicating the work to a ‘new public’ Ie. ‘a public that was not taken into account by the copyright holders when they authorised the initial communication to the public’

CJEU case law: Central elements Element 2: The new public rationale applies to all kinds of links ‘Reference links’, ‘deep linking’, ‘inline links’ (frames, embedded links)

CJEU case law: Central elements Element 3: Links that reach beyond access restrictions infringe copyright If links circumvent access restrictions: The links make the work available to a ‘new public’

CJEU case law: Central elements Element 4: Links to websites containing unauthorized material are unlawful (acts of communication to the public) unless the link is a non-profit activity and the poster of the link did not know or should not have known that the work to which it is linked was unlawfully made available to the public

CJEU case law: Central elements Element 5: Where the posting of hyperlinks is carried out for profit, links to unauthorized content are unlawful unless the poster of the links proves that he had no knowledge of or reason to believe that the website contained unauthorized material

CJEU case law: Central elements Element 6: ‘Notice and takedown’ If the poster of the link did not know or should not have known about the unauthorized content at the time of the posting of the link, but is being noticed by the right holder, action can be taken against him if he does not remove the link

Unclear issues and criticism (i) Links circumventing restrictions, while the work is available on a different website with the right holder’s consent Communication to a new public? CJEU case law is ambiguous

Unclear issues and criticism (ii) Links to websites with unauthorized contents, while the work is available on a different website with the right holder’s consent Communication to a new public? CJEU case law is ambiguous

Unclear issues and criticism (iii) Equalization of hyperlinks and embedded links: Hardly justified Quite different effects

Unclear issues and criticism (iv) Introducing subjective criteria to the concept of communication: Unusual and illogical

Unclear issues and criticism (v) How to assess whether the posting of the link is carried out for profit?

Unclear issues and criticism (vi) How do the rules apply to search engines?

Consequences for copyright protected pictures and images Licensing practises Are undermined by the ‘new public rationale’?

Consequences for copyright protected pictures and images Remedies? Imposition of obligations to provide for access restrictions Imposition of instructions not to embed?

Consequences for copyright protected pictures and images What about links to material covered by copyright exceptions Eg.; Photographs of artworks at public places (‘the panorama exception’) Covered by the ‘new public rationale’? No case law addressing this: The CJEU is probably likely to accept such links If so: What about link collections? (Cf. the Swedish Wikimedia case)