Save our hyperlinks! Paws for reflection as Profs Opine

From the IPKat's learned friend Professor Lionel Bently comes the following:

"You will recall that the European Copyright Society was founded in 2012 [Yes of course, says the IPKat. Kats spend much of their lives recalling things, which is why they spend so much time asleep.  Fortunately the Society's members have not been sleeping, as appears from what comes next]. I attach here an Opinion signed by 17 copyright scholars on the Svensson case pending before the Court of Justice of the European Union on hyperlinks [noted by the IPKat here and on the 1709 Blog here].

The Opinion argues that hyperlinking in general should be regarded as an activity that is not covered by the right to communicate the work to the public embodied in Article 3 of Directive 2001/29 [a.k.a. the InfoSoc Directive]. We offer three reasons for this conclusion:

(a) Hyperlinks are not communications because establishing a hyperlink does not amount to "transmission" of a work, and such transmission is a prerequisite for "communication";

(b) Even if transmission is not necessary for there to be a "communication", the rights of the copyright owner apply only to communication to the public "of the work", and whatever a hyperlink provides, it is not "of a work";

(c) Even if a hyperlink is regarded as a communication of a work, it is not to a "new public."

That's funny, says
Merpel -- the IPKat's
signature looks just
like mine!

However, the Opinion leaves open the possibility that in some circumstances creating hyperlinks might give rise to liability, or be part of a series of acts that gives rise to liability. In fact, as is clear from national case-law, different forms of hyperlinking may give rise to accessory liability (particularly in respect of knowingly facilitating the making of illegal copies); liability under unfair competition law; infringement of moral rights; and possibly for circumvention of technological measures. Only the last of these has been the subject of harmonization at a European level, and thus falls within the competence of the Court of Justice".

If you want a second opinion about this Opinion, check it out with another Katfriend, the excellent Professor Bernt Hugenholtz of the Institute for Information Law (IViR) in Amsterdam, who appears to be in complete agreement with Lionel.  Incidentally, and for what it's worth, his Kat is in agreement too. As blogmeister of a suite of weblogs which have now, between them, posted over 17,700 blog posts, he has made or taken responsibility for tens of thousands of hyperlinks -- for none of which has he sought or received permission -- and therefore has not merely an academic interest in the issues raised by Svensson but a very real one.   His signature is not on the document but, as a gesture of goodwill, here's his paw-mark.