• Assumption of the authorized (source) content; CJEU carries out the entire analysis and decides for its technique of regulating hyperlinks (absence of “a new public”) on the assumption that the linked content is authorized. Sure, this is the case of Swedish proceedings, but does it reflect all cases when we use hyperlinking in our daily lives? If the right owner did not authorize the source content to which I link, is the link still not communicating a work to “a new public”? And what if the source content is put online legally, but not with the consent of the right owner, e.g. under some copyright exception? Does the logic of no-new-public still apply?

31      On the other hand, where a clickable link makes it possible for users of the site on which that link appears to circumvent restrictions put in place by the site on which the protected work appears in order to restrict public access to that work to the latter site’s subscribers only, and the link accordingly constitutes an intervention without which those users would not be able to access the works transmitted, all those users must be deemed to be a new public, which was not taken into account by the copyright holders when they authorised the initial communication, and accordingly the holders’ authorisation is required for such a communication to the public. This [new public] is the case, in particular, where the work is no longer available to the public on the site on which it was initially communicated or where it is henceforth available on that site only to a restricted public, while being accessible on another Internet site without the copyright holders’ authorisation.

32      In those circumstances, the answer to the first three questions referred is that Article 3(1) of Directive 2001/29 must be interpreted as meaning that the provision on a website of clickable links to works freely available on another website [probably not necessarily linked one] does not constitute an act of communication to the public, as referred to in that provision.

• Can the pre-emption work?; CJEU opines that a national court can not extend the exclusive right of communication to the public in its national law, because this would create “legislative differences and thus, for third parties, legal uncertainty”. I would say this follows from the autonomous concept of such a right. But what is the consequence? Because the Union law harmonizes only some exclusive rights, the national court can still create some additional rights as unnamed non-harmonized rights, where no pre-emption applies, unless CJEU wants to suggest that harmonized rights are in fact exhaustively regulated. An example for all is the issue of embedded content where both German and Czech Supreme Court seemed to see no problem in creating such non-harmonized rights.

What is your take on this?

PS: More analysis will come soon. Stay tuned.