THOU SHALT NOT LINK: HOW COMMUNICATION TO THE PUBLIC AFFECTS INTERNET ARCHITECTURE

IIC International Review of Intellectual Property and Competition Law. 2019.

Frosio G.

The architecture of the Internet is changing. A novel expansive construction of communication and making available to the public has been shaking the Internet ecosystem. It is affecting the very essence of the Internet by reaching into the notion of linking. Is linking just a mere digital citation or copyright infringement? Recently, different approaches have been increasingly emerging in different jurisdictions. US and Canadian case law seem to construe linking as no more than a digital reference. In contrast, the Court of Justice of the European Union (CJEU) has been wrestling with this question for some time and has come down to the opposite conclusion. The CJEU has recently decided a multitude of cases—Svensson, BestWater, and C More Entertainment, and later GS Media, Filmspeler, and Ziggo—that redesigned the notion of communication to the public in the Internet. This jurisprudence stands against a fluid legal framework searching for the optimal allocation of intermediary liability of information service providers. Communication to the public is at the center stage of this legislative process as well. EU copyright legislative reform makes Online Content Sharing Service Providers (OCSSP)—the large majority of UGC platforms—communicating to the public. In doing so, the Copyright in the Digital Single Market Directive changes the fundamental rules under which online platforms operate and UGC content is created for a large portion of the connected world. This, in turn, is forcing online intermediaries to remodel the architecture of the Internet accordingly. Proactive censorship—rather than ex ante review of allegedly infringing content and links—is set to become the first commandment governing the Internet of tomorrow.

Keywords: copyright, communication to the public

Publication based on the results of: Legal Reguation of Data Sharing: public law and private law aspects (2019)