|There are links which may be even|
cuter than hyperlinks
The story with copyright and hyperlinks is in fact still far from its conclusion.
- Is against the understanding of the right of communication to the public in both international and EU laws, as well as earlier CJEU case law;
- Results in the undue exhaustion of the right of communication to the public, contrary to the prohibition in Article 3(3) of the InfoSoc Directive;
- Results in the [forbidden: see Article 5(2) Berne] introduction of formalities into copyright: "to the extent that Svensson indicates that the “new public” criterion will not apply if restrictions accompany the work’s making available, the decision risks establishing an obligation to reserve rights or protect works etc. by technical protection measures, in violation of the Berne Convention’s prohibition of formalities that condition the exercise of exclusive rights."
[By the way, if you happen to be in London on 13 November, you should not miss this BLACA meeting on linking, featuring very high-profile speakers ...]
|Despite her language proficiency |
and usual confidence,
Merpel has not been able to understand
everything in the text of the Spanish reform
As regards linking, the new law allows for sanctions of up to €600,000 for linking to unlawful content and introduces an inalienable [so this may mean: no opt-in for Google News, as instead happened in Germany] ancillary right over news content.
According to El Mundo, Google was not thrilled. The US company holds the view that services like Google News help publishers to have traffic re-directed at their websites. While it will continue helping Spanish publishers, the US company will also evaluate options available under the new law.
(disclaimer: NOT Google Glass)
Is the EU considering adopting initiatives similar to the German and Spanish ones? It looks like Günther Oettinger may be interested. As first brought to this Kat's attention by Katfriend Marc Mimler (University of Warwick) and also reported by The Wall Street Journal, in a series of interviews with German newspapers, the incoming Commissioner for Digital Economy and Society "floated various anti-Google ideas that could take on a more concrete form when he takes office on Nov. 1".
One option could be for instance to charge Google for "tak[ing] intellectual property from the EU and work[ing] with it". What this does mean is not entirely clear.
What however seems clear is that Mr Oettinger's predecessor, Neelie Kroes, is not impressed. Still according to the WSJ, her spokesman said that “the Commission’s job is to solve market failures and enforce rules, not target companies.”
We'll see what happens next month when the term of the new Commission officially starts. Overall, what seems clear from the academic debate and national/EU initiatives alike is that the CJEU decision in Svensson was not the end of the copyright&hyperlinks story.