Do you need permission to link to freely accessible content? The 2015 Toronto Games website appears to think so

Do you need permission from the relevant copyright owner to link to his/her content?

This question has been haunting European (to say the least) minds - and possibly also hearts - at least since the Court of Justice of the European Union (CJEU) issued its 2014 decision in Svensson [Katposts here], in which it held that:

"[T]he provision on a website on a website of clickable links to works freely available on another website does not constitute an ‘act of communication to the public’ as referred to in [Article 3(1) of the InfoSoc Directive]".

This is so because such an act, whilst being an act of communication, would not be also an act of communication to a 'new public', ie "a public that was not taken into account by the copyright holders when they authorised the initial communication to the public". 

As such, it would not satisfy both conditions required under Article 3(1) of the InfoSoc Directive.

There is probably no need to recall that the notion of 'new public' has generated a fairly heated debate in the aftermath of Svensson, with the Association Littéraire et Artistique Internationale (ALAI) holding the view that such criterion would be contrary to international law and scholars like Prof Jan Rosen (Stockholm University) suggesting that national judges should disregard it [here]. 

In all this, following Svensson the CJEU issued two further decisions on the topic of linking and copyright, these being BestWater [here, concerning framing of videos] and C More Entertainment [here, on linking by means of paywall circumvention], whilst a third case is currently pending. This is the so called GS Media case [or, suspecting that it might prove slightly more popular, Playboy case], concerning whether linking to a source that is freely available on a website but which communicates to the public without the consent of the copyright holder should be qualified as an act of communication within Article 3(1) of the InfoSoc Directive.

Whilst waiting for the outcome of the latter, via Katfriend Norman Siebrasse (University of New Brunswick) comes the news of a fairly interesting approach recently taken in Canada by the Toronto 2015 Pan Am and Parapan Am Games.

Until very recently the Terms of Use of the Toronto Games website stated in fact the following:

"Links to this Site are not permitted except with the written consent of TO2015™. If you wish to link to the Site, you must submit a written request to TO2015™ to do so. Requests for written consent can be sent to branduse@toronto2015.org. TO2015™ reserves the right to withhold its consent to link, such right to be exercised in its sole and unfettered discretion."

Now the Terms appear to have changed [possibly following some online mocking?], in the sense that they state the following:

"Other sites may link to the Site with or without our authorization, and we may block any links to or from the Site. Your use of third party websites and resources is at your own risk.

The use of or embedding of content from this Site is not permitted except with the written consent of TO2015™. Requests for written consent can be sent to brandapprovals@toronto2015.org. TO2015™ reserves the right to withhold such consent, such right to be exercised in its sole and unfettered discretion."

Whilst any insights from Canadian readers would be very welcome as to the correct approach under Canadian law, do these Terms make sense from a EU/post-Svensson perspective?

Readers might remember that one of the episodes of the Post-Svensson Stress Disorder Katseries produced with fellow blogger Alberto was indeed devoted to discussing whether non-compliance with the terms of use of a certain website by means of linking to relevant content could constitute an act of communication within Article 3(1) of the InfoSoc Directive, on consideration that such content could not be 'freely accessible'. 

Katexclusive: here's one of the pictures
leaked in the Playboy case

At that time we concluded in the negative on this point (whilst also expressing the view that a future CJEU decision should clarify this very issue). Relying especially on paras 26 to 28 of the Svensson judgment, contractual restrictions relate to uses that follow the moment of the initial communication. The public targeted by the initial communication would consist of all potential visitors to a certain site that does not adopt any restrictive measures. As such, the 'new public' requirement would not be likely met and hyperlinks to that site, whilst being acts of communication, would not be to a new public.

It would appear that the 2015 Toronto Games site has adopted a different view and, although the language of its Terms has changed, the substance has remained pretty much the same, especially considering that links to the site may still be blocked. In fact how can the latter be enforced if not on copyright grounds and by means of relevant takedown requests to be submitted to the likes of Google, Facebook, Twitter, etc?

Similarly to embedding, also mere linking to content on the Toronto Games website appears to be considered something subject to the exclusive control of the relevant copyright owner. But is it so simply because the terms of use require one to seek and obtain permission first?

Hopefully when the CJEU decides the Playboy case it will shed some light on the important issue of whether contractual restrictions may determine whether a certain act falls within our outside the scope of Article 3(1) of the InfoSoc Directive. 

Hopefully the Court - unlike Svensson, BestWater and C More Entertainment - will also seek the Opinion of an Advocate General first. 

Hopefully, hopefully ... Too much hope?