En upphovsrättslig analys av EU-domstolens tolkningar av artikel 3.1 i Infosoc-direktivet och dess effekt på länkning på internet
Sammanfattning: Copyright law gives the creator of a copyrighted work, for example, an exclusive right to exploit this creation by making it available to the public. Legislation does not always evolve in the same tact as technology. Even though legislation most of the time is general and therefore can be applied to situations that wasn’t intended when the legislation was created sometimes the rapid development of technology brings new questions that wasn’t accounted for by the legislator. An example of a situation like this is the case (C-160/15) where the European Court of Justice (The Court) ruled that when actors on the internet link to copyright protected material with an intent to profit it’s seen as a communication to the public. Internet is characterized by that everything is connected, it’s one big platform. Internet users use links all the time. It’s a quick and effective way to spread information and to navigate between different websites. The purpose of this essay is to carry out a research of the newly established practice by the European Court of Justice regarding hyperlinks on the internet. The questions that will be answered in this essay are the following. How does The Courts interpretation of article 3 Infosoc-directive affect linkage on the internet? Can this interpretation affect our freedom of expression and information? Is The Courts conclusion regarding the necessary prerequisite “new public” and “presumption of knowledge”, when linkage is used with the purpose of profit, compatible with international copyright law? The Courts conclusion, in our opinion, regarding the prerequisite “new public” is not compatible with international copyright law because the prerequisite were concluded from an interpretation of the Berne Convention without an authority to do so. Regarding The Courts conclusion of the presumption of knowledge when links is used with an intent to profit we have found that this statement is in accordance with international copyright law. However, in our own assessment, we think that it will lead to an unreasonable responsibility for the actors to research if the material, to which they link to, is protected by copyright or not, and if the material was published with permission. By our research we have reached the conclusion that The Court’s interpretation of article 3 Infosoc-directive will diminish the usage of links on the internet and, because linkage is the primary form in which information is spread, in turn have a negative effect on our freedom of expression and information.
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