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Re: Linking to publicly available material not infringement, CJEU rules

From: Wendy Seltzer <wseltzer@w3.org>
Date: Thu, 13 Feb 2014 18:38:27 -0500
Message-ID: <52FD5773.9070307@w3.org>
To: ashok.malhotra@oracle.com, TAG <www-tag@w3.org>
Hi Ashok,

The situation isn't directly analogous. Because US law doesn't recognize
a right of "communication to the public," deep-linking to content posted
with authorization has faced less challenge. This decision doesn't speak
to linking to material posted without the copyright owner's authorization.


On 02/13/2014 11:39 AM, Ashok Malhotra wrote:
> Hi Wendy:
> This is good news indeed, but what is the situation in the US?
> All the best, Ashok
> On 2/13/2014 10:39 AM, Wendy Seltzer wrote:
>> Hi TAG,
>> This is a good decision for the Web, that linking to publicly available
>> material does not infringe the copyright holder's rights.
>> https://torrentfreak.com/hyperlinking-is-not-copyright-infringement-eu-court-rules-140213/
>> >From the decision, invoking the European right of "communication to the
>> public,"
>> <http://curia.europa.eu/juris/document/document.jsf?text=&docid=147847&pageIndex=0&doclang=EN&mode=req&dir=&occ=first&part=1&cid=7778>
>>> 25      In the circumstances of this case, it must be observed that
>>> making available the works concerned by means of a clickable link,
>>> such as that in the main proceedings, does not lead to the works in
>>> question being communicated to a new public.
>>> 26      The public targeted by the initial communication consisted of
>>> all potential visitors to the site concerned, since, given that
>>> access to the works on that site was not subject to any restrictive
>>> measures, all Internet users could therefore have free access to them.
>>> 27      In those circumstances, it must be held that, where all the
>>> users of another site to whom the works at issue have been
>>> communicated by means of a clickable link could access those works
>>> directly on the site on which they were initially communicated,
>>> without the involvement of the manager of that other site, the users
>>> of the site managed by the latter must be deemed to be potential
>>> recipients of the initial communication and, therefore, as being part
>>> of the public taken into account by the copyright holders when they
>>> authorised the initial communication.
>>> 28      Therefore, since there is no new public, the authorisation of
>>> the copyright holders is not required for a communication to the
>>> public such as that in the main proceedings.
>> --Wendy

Wendy Seltzer -- wseltzer@w3.org +1.617.715.4883 (office)
Policy Counsel and Domain Lead, World Wide Web Consortium (W3C)
http://wendy.seltzer.org/        +1.617.863.0613 (mobile)
Received on Thursday, 13 February 2014 23:38:29 UTC

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