For whom the copyright scale tips: has the CJEU established a proper balance of rights with its GS media case judgement?
The paper examines liability issues which arise in the process of hyperlinking to a material that represents an infringement of the copyright. The main question of the paper is whether the newly established practice of treating hyperlinking as secondary liability in certain cases, set by the Court of Justice of the European Union (CJEU), allows for an appropriate balance of rights between hyperlink providers and copyright holders. An analysis is provided regarding the current state of the public communication right and its impact on the balance of pertinent rights. The paper also highlights a couple omissions made by the Court in deliberating this judgement, chiefly the exclusion of the right to conduct business from the balancing exercise. The key focus of this paper is on the recent case of the CJEU, C-160/15 - GS Media BV v Sanoma Media, however, the paper also draws on the previous case law of the CJEU and corresponding cases from US jurisprudence.
Keywords: secondary liability; hyperlinking; copyright infringement; right to property; right to conduct business; freedom of expression and information; ISP liability; GS Media case; Svensson case; BestWater case