New CJEU reference on linking and streaming

by Pedro Malaquias

The copyright issues surrounding linking are from over despite (or as a result of?) CJEU’s decision in Svensson (for my take on it, see here). Additional clarifications are now expected as the Midden-Nederland District Court (Netherlands) referred to the Court of Justice of the European Union (CJEU) the following two questions:

1) ‘Must Article 3(1) of the InfoSoc Directive be interpreted to mean that “an act of communication to the public” within the meaning of that provision occurs if someone sells a product on which he has installed add-ons that contain hyperlinks to websites on which direct access is provided to copyright-protected works such as films, series and live broadcasts without the rightholders’ consent?

Is this different if

  • the copyright-protected works have not been previously disclosed to the public online at all or solely via a subscription with the rightholders’ consent?
  • the add-ons that contain hyperlinks to websites on which online access is provided to copyright-protected works without the rightholders’ consent are freely available and can also be installed on the media player by the users themselves?
  • the websites on which access is provided to copyright-protected works without the rightholders’ consent can also be located and accessed by the public without the media player?

2) Must Article 5 of the Copyright Directive (Directive 2001/29/EC) be interpreted to mean that there is no “lawful use” within the meaning of the first paragraph at b of that provision, if a temporary reproduction is made by an end user during the streaming of a copyright-protected work from a website of a third party on which this copyright-protected work is offered without the consent of the rightholder(s)?

If the answer to this question is in the negative, is making a temporary reproduction by an end user during the streaming of a copyright-protected work from a website of a third party on which this copyright-protected work is offered without the consent of the rightholder(s) in breach of a the “three-step test” referred to in Article 5(5) of the Copyright Directive (Directive 2001/29/EC)?”

The IPKat has further details and an analysis on this case, as well as an English translation of the reference for preliminary ruling. See here.