"REPORT and OPINION on the making available and communication to the public in the internet environment – focus on linking techniques on the Internet" Adopted Unanimously by The Executive Committee of ALAI

The exclusive right of “making available” under the WCT [WIPO Copyright Treaty] and the implementing EU legislation cover the offering to the public of a work for individualized streaming or downloading; in addition, where it takes place, the actual transmission of a work to members of the public also is covered, both irrespective of the technical means used for making available.  In essence, what matters is that the act (i) is performed by an individual person (ii) directly or indirectly has the distinct effect of addressing the public, irrespective of the tool used by the individual, and (iii) concerns subject matter protected by copyright or related rights.

As applied to hyperlinks, these findings lead to the following conclusions: (i) The making available right covers links that enable members of the public to access specific protected material; (ii) the making available right does not cover links that merely refer to a source from which a work may subsequently be accessed.

It is irrelevant whether the link takes the user to specific content on a third-party website, or whether the linking site retains a frame around the content, so that the user is not aware that she is accessing the content from a third-party website.

It is also irrelevant to the act of offering access whether the work made available through the link is itself infringing: it is the act of offering that triggers the making available right, and that act is the same whatever the copyright status of the work that is made available.

There is obviously no infringement of the “making available” right where the rightholder’s decision whether and under which conditions the targeted content is made available on the internet is respected. In contrast, this means in particular that linking to targeted content infringes the “making available” right if (i) the content is initially made available without the rightholder’s consent, or (ii) technical protection measures have been circumvented or (iii) the availability of the content, even if initially disclosed over the Internet with consent, otherwise clashes with the declared or clearly implied will of the rightholder.

Accordingly, courts should not introduce a general presumption of the rightholder’s consent to further communication to the public of what initially has been posted on the Internet with the rightholder’s consent, since this would amount to introducing an exception or limitation to the right, while general exceptions to the scope of the “making available” right require legislative action. This finding does not exclude that a court may be inclined to infer such consent to permit the link based on the individual circumstances of a case.

Featured here is the executive summary of a report and opinion adopted unanimously by the Executive Committee of Association Littéraire et Artistique Internationale (ALAI). The full report is available for download here.

One Comment
  1. IMHO, a much more balanced and convincing analysis that reflects the input of a pantheon of both common and civil law scholars can be found here:

    http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2220326

    The Reference to the CJEU in Case
    C-466/12 Svensson

    The Reference to the CJEU in Case
    C-466/12 Svensson

    Lionel Bently, Estelle Derclaye, Graeme B Dinwoodie, Thomas Dreier, Séverine Dusollier, Christophe Geiger, Jonathan Griffiths, Reto Hilty, P Bernt Hu genholtz, M-C Janssens, Martin Kretschmer, Axel Metzger, Alexander Peukert, Marco Ricolfi, Martin Senftleben, Alain Strowel,
    Michel Vivant, Raquel Xalabarder
    PAPER NO. 6/2013
    FEBRUARY 2013

    Although this Bentley et al paper is focussed on the pending Svensson case before the CJEU, it includes prominent and appropriate mention of the SCC’s decision in Crookes v. Newton http://bit.ly/1c3KDfk

    Howard Knopf

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