On 15 February 2013, the European Copyright Society (ECS), whose members include renowned scholars and academics, issued a 17-page opinion on the Svensson case (C-466/12). This case is currently pending before the European Court of Justice (ECJ) after a reference for a preliminary ruling by Sweden’s Court of Appeal.
The main question to the ECJ is, whether the hyperlinking in one’s own website of someone else’s work by anyone other than the copyright holder of that work, constitutes a “communication to the public” within the meaning of Article 3(1) of Directive 2001/29/EC of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society.
The ECS considers that hyperlinking should be regarded as an activity that is not covered by copyright or related rights in the information society. If to the contrary, this were to be the case, then all hyperlinks would need to be licensed expressly for use. According to the ECS, this would be absurd.
To support its point, the ECS raised three arguments: First, it considers that the creation of a hyperlink is not equivalent to the “transmission” of a work despite the fact that a transmission is a prerequisite for a communication, according to current ECJ case-law. Second, even if a “transmission” would not be a prerequisite for a communication, the creation of a hyperlink does not “communicate the work” because the link itself only allows a user to find where a work is. In many circumstances, works can be removed from the Internet while the hyperlinks remain intact on website contents. Third, even if a hyperlink were to be regarded as a communication of a work, the communication is not made to a “new public” This element was previously required by the ECJ in order for a transmission to be considered as a communication to the public. (NRO)
The opinion can be found on http://www.scribd.com