In VG Bild-Kunst, the Grand Chamber of the ECJ has expressly held, for the first time, that linking to a copyright work lawfully published on a third-party website may be restricted through contract and not solely through technical restrictions on access (for instance, a paywall). To this end, however, the concerned rightholder is required to adopt or mandate the adoption of effective technological measures. Lacking these, an unauthorised act of linking shall not be infringing. The judgment has important implications for the construction of the right of communication to the public in the InfoSoc Directive 2001/29 and its application to online scenarios, as well as for the interpretation of provisions in other EU copyright directives, including the DSM Directive 2019/790. It also raises questions regarding the compatibility of the Court’s reasoning with key tenets of copyright law, such as the no formalities rule in the Berne Convention, and the prohibition of exhaustion of this economic right.
Rosati, Eleonora, Linking and Copyright in the Shade of VG Bild-Kunst (August 19, 2021). Common Market Law Review, forthcoming.