Linking, Searching, Scraping: What's Going On In Europe And Italy

A recent judgment of the Court of Justice of European Union (CJEU) ( Case C-466/12, popularly known as the Svensson case) confirms its approach to give growing attention to the economic impact and practical implications of the decision when interpreting applicable EU provisions.

At the same time, in Italy, discussions on the new Regulation of Italian Communication Authority on the enforcement of copyright in the context of online and audiovisual media services is turning more and more into discussions on having different rights applying in the online world with respect to the offline world, taking into account that the bundle of uses is different and access and protection of contents online can be better reached through new technologies.

The Svensson case concerned the extension of the notion of "communication to the public" as provided by EU copyright law, Article 3, paragraph 1 Directive 2001/29/EC on the harmonization of certain aspects of copyright and related rights in the information society.

According to such provision: "1. Member States shall provide authors with the exclusive right to authorise or prohibit any communication to the public of their works, by wire or wireless means, including the making available to the public of their works in such a way that members of the public may access them from a place and at a time individually chosen by them".

The case was brought to the CJEU following a Swedish litigation involving journalists and the owners of a website which provided visitors with links to the journalists' articles that were published on freely accessible newspapers' websites. The journalists sought compensation from the website owners claiming that the website owners infringed on their exclusive right to make their articles available to the public by providing the aforementioned links on the website.

The national Swedish Court decided to refer four questions to the CJEU for preliminary ruling. The questions proposed to the CJEU involve the limits and boundaries of the protection to authors' exclusive right of communicate their works to the public vis-à-vis the provision of links on the internet. The questions included:

Does providing a clickable link to protected works constitute a communication to the public within the meaning of the Directive 2001/29/EC? Is the answer to question one in any way affected if the clickable link directs users to a free website or a website where the access is restricted? In answering question one, should any distinction be drawn between cases where the protected work is shown after a click on another website and cases where such work is...

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