Zamieszczanie odesłań internetowych a zakres autorskich praw majątkowych

Abstrakt

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