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AG’s opinion—‘automatic’ links can constitute a communication to the public (VG Bild-Kunst)

AG’s opinion—‘automatic’ links can constitute a communication to the public (VG Bild-Kunst)
Published on: 10 September 2020
Published by: LexisPSL
  • AG’s opinion—‘automatic’ links can constitute a communication to the public (VG Bild-Kunst)
  • What are the practical implications of this case?
  • What was the background?
  • What did the AG opine?
  • Analysis of case-law relating to hyperlinking and making available to the public
  • ‘Clickable’ versus ‘automatic’ links
  • The use of technological protection measures
  • Case details

Article summary

TMT analysis: In an opinion by Advocate General Szpunar, the AG has sought to clarify the Court of justice’s case law on linking by proposing an adaptive reading of it, in line with the court’s more recent case law. Drawing a distinction between ‘clickable’ links and ‘automatic’ links (automatic links being ones that automatically display the resource to which the link leads on the webpage containing that link, without the need for the user to take any action), the AG found that where automatic links embedded in a web page lead to works protected by copyright, there is an act of communication of the work in question to a public which was not taken into account by the copyright holder when the work was initially made available. Since automatic linking requires the authorisation of the copyright holder, technological protection measures would be eligible for legal protection against circumvention. On the other hand embedding by means of clickable links using the framing technique does not require the authorisation of the copyright holder as it is not a communication to a ‘new’ public. or take a trial to read the full analysis.

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