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

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

The European Copyright Society (ECS) was founded in January 2012 with the aim of creating a platform for critical and independent scholarly thinking on European Copyright Law. Its members are renowned scholars and academics from various countries of Europe, seeking to promote their views of the overall public interest.

The Society is not funded by, nor has been instructed by any particular stakeholders.

The ECS wishes to take the opportunity to put on record its views of the issues before the Court in Case C-466/12, Svensson. 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.  As the Supreme Court of Canada has stated “[h]yperlinks ... are an indispensable part of [the Internet’s] operation.”[1]

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,[2] as well – of course – with business ventures that depend on these types of linkages. Europe has developed a significant sector of SMEs, many of whose web operations depend on the use and provision of links. The Court must not under-estimate the importance of its ruling in this case.[3]

As Tim-Berners Lee, who is regularly accredited as being an inventor of the World Wide Web , explains a link is nothing more than a reference or footnote, and that the ability to refer to a document is a fundamental right of free speech.[4]

In a similar vein, US Law Professor Jessica Litman states, Digital Copyright: Revising Copyright Law for the Information Age (New York, Prometheus Books, 2001), at 183:

“… the public has always had, and should have, a right to cite. Referring to a copyrighted work without authorization has been and should be legal. Referring to an infringing work is similarly legitimate … Drawing a map showing where an infringing object may be found or dropping a footnote that cites it invades no province the copyright owner is entitled to protect even if the object is blatantly pirated from a copyrighted work. Posting a hypertext link should be no different.”

The above is an excerpt of an opinion written by the European Copyright Society. For the full piece, including a list of all the signatories, click here.

[1]See Crookes v Newton, [2011] SCC 47, [2011] SCR 269 per Abella J, at [34].

[2]Jack Balkin, ‘The Future of Free Expression in a Digital Age’, (2009) 36 Pepp. L. Rev. 427.

[3] In Intellectual Property Law (Oxford: OUP 2009), Professors Lionel Bently and Brad Sherman state, at 151:

“Most hyper-linking simply makes it easier to locate (and, if desired, access) works which are already available to the public, and it would be unduly constraining to require all links to be authorized.”

[4]Tim Berners-Lee, ‘Axioms of Web Architecture. Links and Law: Myths’, at  See also, Steven Waldman, The Information Needs of Communities: The Changing Media Landscape in the Broadband Age, (FCC) 340.