Linking: Essential functionality on the internet and never-ending story?

Abstract

It might seem surprising that one of the most essential functions on the internet, linking –or “what webs the Web” – is still topical twenty years after the adoption of the InfoSoc Directive. Yet, on 9 March 2021 the Grand Chamber of the Court of Justice of the European Union (CJEU), comprising 15 judges, handed its 56-paragraph long judgment in the latest piece of the linking puzzle: This time in relation to thumbnails, framing and effective technological protection measures in Case C-392/19, VG Bild-Kunst. Hyperlinks, as Advocate General (AG) Szupnar notes in his Opinion to the case, allow internet users to “‘travel’ through ‘cyberspace’” in a similar fashion as “[t]he heroes of George Lucas’ Star Wars film saga were able to travel through ‘hyperspace’ faster than the speed of light using a ‘hyperdrive’”. He continues in his science fiction analogy that “[a]lthough those links do not defy the laws of physics, as did the hyperdrives of the spacecraft in Star Wars, they nonetheless present a number of challenges from the point of view of the law, in particular copyright law.” With this science fiction analogy in mind, it is less surprising that the question of whether hyperlinking to copyright-protected material constitutes a communication to the public in the sense of Article 3(1) InfoSoc Directive has kept the CJEU and legal scholarship busy for the last decade. With the recently performed update of EU copyright rules in the CDSM Directive, no legislative clarification is in sight. And just like George Lucas’ successful Star Wars imperium, the linking saga keeps on going.