Pragmatismo, contaminazioni e politiche del linking nella giurisprudenza della CGEU

Linking is essential to the very existence of the Internet. There’s been a long-standing debate on whether linking -and other related activities such as framing- to third party content may trigger liability for direct copyright infringement. Recently, different approaches have been increasingly emerging in different jurisdictions. Is linking just a mere digital citation or communication to the public? US and Canadian case law seems to have established that the former is not the case, construing linking as no more that digital references. In contrast, the Court of Justice of the European Union (CJEU) have been wrestling with this question for some time and has apparently chosen an opposite option, construing linking as a communication which would be relevant for copyright infringement if qualified enough. Actually, the CJEU departed from consistent jurisprudence from national courts relegating copyright infringement through linking to tort-based secondary liability. The CJEU has recently decided a multitude of cases -Svensson, BestWater, and C More Entertainment, and later GS Media, Filmspeler, and Ziggo- that redesigned the notion of communication to the public. In doing so, the CJEU construed linking through a pragmatic approach that contaminated traditional objective standards for primary liability with subjective standards for secondary liability to the end of balancing competing fundamental rights. This jurisprudence stands against a fluid legal framework struggling with an ongoing copyright reform and searching for the optimal allocation of intermediary liability for online platform and other information service providers.