GS Media and Soulier: may the hyperlink conondrum be solved - and the "new public", "specific technical means" and "restricted access" theories be neutralized - through the application of the implied license doctrine and the innocent infringment defense?
In my paper entitled “Svensson: honest attempt at establishing due balance concerning the use of hyperlinks – spoiled by the erroneous ‘new public’ theory” published on this website, it is discussed, inter alia, how the CJEU tried to establish due balance between various rights and interests concerning the use of hyperlinks by applying the “restricted access” theory (along with the “new public” and “specific technical means” theories, which in my view, were also badly founded but, in previous cases, they had not created yet major substantial problems). In that paper, I outlined two possible options of interpretation and evolution of the criterion of “restricted access”. One of them (and the more probable one) was reducing the concept of restricted access to restriction through technological measures, leading to de facto exhaustion of the right of communication to the public. The other option (less probable in view of the findings in Svensson) was to recognize not only the use of technological measures but also other means to restrict availability of works, which could bring the legal construction closer to a specific form of implied license. In this paper, three recent CJEU decisions (one order and two judgments) are reviewed: BestWater which strengthened Svensson’s formality aspect and revealed how anachronistic results the combined application of the three theories might produce, and the GS Media – Soulier tandem, which appear to raise the possibility of putting the triptych of those theories to the backburner, making Svensson’s formality aspect fade away, and opening the way to solve the task of balancing of rights and interests concerning hyperlinks through appropriate application of the implied license doctrine and the innocent infringement defense.