I Linking and copyright infringement

 A recent decision of the Court of Justice dated September 8, 2016 considers the situations when posting a link on the Internet can constiture copyright infringement.

In the Judgement, the Court considered that in order to establish whether the fact of posting, on a website, hyperlinks to protected works, which are freely available on another website without the consent of the copyright holder, constitutes a communication to the public, it is to be determined whether those links are provided without the pursuit of financial gain by a person who did not know or could not reasonably have known the illegal nature of the publication of those works on that other website or whether, on the contrary, those links are provided for such a purpose, a situation in which that knowledge must be presumed. 

II Legislation

Directive (EU) 2016/1148 of the European Parliament and of the Council, of 2016-07-6. OJEU L194/1 of 2016-07-19 

Sets forth the measures for a high common level of security of network and information systems across the Union.

Order No 9179/2016. D.R. No 137/2016, Series II of 2016-07-19 

Amends the Order No 3571/2014, of 6-03, which rules the formal requirements of the applications and of the supporting documents for industrial property rights registry applications. 

Amendment Notice No 739/2016. D.R. No 137/2016, Series II of 2016-07-19 

Amendment to the publication of the table of industrial property rights fees.

Regulation No 829/2016. D.R. No 161/2016, Series II of 2016-08-23 

Regulation on the pre-contractual and contractual information within the electronic communications.

Amendment Notice No 878/2016. D.R. No 168/2016, Series II of 2016-09-01 

Amends the Regulation 829/2016, on the pre-contractual and contractual information within the electronic communications that sets forth the requirements applicable to precontractual and contractual information to be provided by the companies that provide public communications networks or publicly available electronic communications services.

III Case Law

Judgement of the Court of Justice (Third Chamber) of 2016-10-12. www.curia.europa.eu Case C-166/15 (Reference for a preliminary ruling — Intellectual property — Copyright and related rights — Directive 91/250/EEC — Article 4(a) and (c) — Article 5(1) and (2) — Directive 2009/24/EC — Article 4(1) and (2) — Article 5(1) and (2) — Legal protection of computer programs — Resale of “used” licensed copies of computer programs on nonoriginal material media — Exhaustion of the distribution right — Exclusive right of reproduction) 

The initial acquirer of a copy of a computer program — in respect of which the copyright holder’s distribution right is exhausted in accordance with Article 4(c) of Directive 91/250 — who resells that copy must, in order to avoid infringing that right holder’s exclusive right of reproduction of his computer program, laid down in Article 4(a) of that directive, make any copy in his possession unusable at the time of its resale. 

It is for the acquirer of an unlimited license for the use of a used copy of a computer program who, relying on the rule of exhaustion of the distribution right, downloads a copy of that program onto his computer from the right holder’s website to establish, by any available evidence, that he acquired that license in a lawful manner.

Article 4(a) and (c) and Article 5(1) and (2) of Directive 91/250 must be interpreted as meaning that, although the initial acquirer of a copy of a computer program accompanied by an unlimited user licence is entitled to resell that copy and his licence to a new acquirer, he may not, however, in the case where the original material medium of the copy that was initially delivered to him has been damaged, destroyed or lost, provide his back-up copy of that program to that new acquirer without the authorisation of the right holder. 

IV Resolutions, Recommendations, Opinions and Others

Opinion of the European Economic and Social Committee, of 2016-04-27. OJEU C264/57 of 2016-07-20

On the “Proposal for a directive of the European Parliament and of the Council on certain aspects concerning contracts for the supply of digital content”, as well as on the “Proposal for a directive of the European Parliament and of the Council on certain aspects concerning contracts for the online and other distance sales of goods”.