A resounding no. Opinion European Copyright Society on Svensson hyperlink-case

Artikel Bernt Hugenholtz op KluwerCopyrightBlog.com: The European Copyright Society, a group of prominent European scholars, today issued an opinion on the Svensson case (Case C-466/12), which is currently before the European Court of Justice. The case, which was referred to the Court by the Swedish Court of Appeal (Svea hovrätt) on 18 October 2012, raises the important question whether setting a hyperlink to a copyright protected work amounts to ‘communication to the public’ within the meaning of Article 3(1) of the Information Society Directive.

“If hyperlinking is regarded as communication to the public, all hyperlinks would need to be expressly licensed. In our view, that proposition is absurd.“

In a detailed, 17-page opinion the European Copyright Society argues that the answer to this question should be a resounding no. According to the Society, “The importance of this particular reference should be evident to the Court. Although hyperlinking takes many forms and has multiple functions, there can be no doubt that it is the single most important feature that differentiates the Internet from other forms of cultural production and dissemination. Hyperlinking is intimately bound to the conception of the Internet as a network, and hyperlinks constitute paths leading users from one location to another. […] The legal regulation of hyperlinking thus carries with it enormous capacity to interfere with the operation of the Internet, and therefore with access to information, freedom of expression, freedom to conduct business, as well – of course – with business ventures that depend on these types of linkages.”

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