The CJEU’s ruling on web linking: what will it mean for copyright owners?

The much-anticipated ruling in Bild-Kunst diverged from an Advocate General’s opinion, and could herald a sea change for copyright owners. Cristina Creţu and Flavia Ștefura of Maravela, Popescu & Asociații report.

The ruling in VG Bild-Kunst v Stiftung Preußischer Kulturbesitz was not unexpected in terms of outcome. But it was interesting to see that the Court of Justice of the European Union’s (CJEU) reasoning diverged under certain aspects from the one proposed by Advocate General (AG) Maciej Szpunar in his opinion delivered in October last year, namely:

• With regards to the type of used hyperlinks (clickable versus non-clickable), the AG holds that they should be viewed differently, but the CJEU decided not to depart from its traditional interpretation that all types of hyperlinks are to be treated the same.
• In relation to the technology used for hyperlinks, the AG analysed the effects of different technologies but the CJEU essentially based its reasoning on the rights owner’s perspective.
• In its analysis, the court recalled its previous case law to set the framework for the notions of “communication to the public” and “public”. In order for a communication to the public to exist, several cumulative and interdependent criteria must be met.
• A user in full knowledge of what they are doing must give access to a copyright protected work.
• The protected work must in fact be directed at an indeterminate number of potential recipients.
• When using the same technical means as the original communication, the public to which the communication is made must be a “new” public, meaning a different public than the one taken into consideration by the rights owner when authorising the first communication; or the protected work must further be communicated using different technical means than the ones initially envisaged by the rights owner.

Additional complementary criteria must be assessed on a case by case basis.

The court reasoned that framing does fulfil the condition of giving access to a protected work, “provided the technical means used by the technique of framing are the same as those previously used to communicate the protected work to the public on the original website, namely the Internet, that communication does not satisfy the condition of being made to a new public and, since that communication accordingly does not fall within the scope of a communication ‘to the public’”.