Zamieszczanie odesłań internetowych a zakres autorskich praw majątkowych

Abstract

In the article the current problems concerning clickable linking as potential exploitation of an author’s economic rights are discussed.At the core of the article is the critical analysis of the conditions for obtaining an author’s consent for linking established by the CJEU in the Svensson case. The ruling is an important step in the CJEU’s interpretation of public communication right as enshrined in art. 3 of the information society Directive. The conditions of the separate technological mode of exploitation and of the existence of the “new public”, are analysed with reference to previous discussions based on court rulings in different states. It is argued that the approach of the CJEU creates new problems, like establishing a link between application of technological protection measures and the scope of author’s rights, or leaving the question when the public is “new” unclear. The approach adopted by the CJEU was not the only one possible, and it does not seem the end of discussion on the topic, as the response by representatives of rights holders, academics and some of the Member States’ courts demonstrate.