Four recent references by national courts to the CJEU in relation to whether linking constitutes making content available, and whether copies made when browsing are infringing copies, indicate the importance of clarifying the application of copyright law in the digital media sector.
In Svensson (1) and C More Entertainment (2) two Swedish courts, the Svea hovrätt and the Högsta domstolen, have asked the CJEU to determine whether linking constitutes communication to the public. If so, they have asked the CJEU to consider whether it is relevant if the website being linked to imposes restrictions on access and whether it is relevant to consider the manner in which the linking is done. The CJEU has also been asked to determine whether there should be a legal distinction between linking and framing, and finally whether a Member State may expand the meaning of "communication to the public" to cover more than is set out at Article 3(1) of the Information Society Directive.
Similarly, in Bestwater (3) the German Supreme Court has asked the CJEU to give a preliminary ruling on the question of whether "embedding" a third party's copyright protected work (in this case a short film) on a website, where that work is already publicly available via another website (in this case YouTube), constitutes a communication to the public within Article 3(1) of the Information Society Directive, even where the work is not communicated to a new public and technological process for communicating the work is the same. It is interesting to note the questions referred specifically refer to "embedding" rather than linking or framing, although the German Supreme Court's decision referring the questions does make reference to the Svensson case.
Finally, in NLA v PRCA* (4) the Supreme Court has referred questions to the CJEU concerning whether copies made on users' computer screens and hard drives when browsing the internet are temporary for the purpose of Article 5(1) of the Information Society Directive (5). If they are not these copies will infringe copyright in the content being viewed by that user.
The CJEU's decisions in these cases will be central to how copyright is applied in the digital media sector in the EU. Given the fundamental nature of both of these acts in the online world the CJEU's decisions will have widespread ramifications.