Why copyright and linking can tango

This article discusses the legal status of links, in connection with the pending cases before the Court of Justice in Svensson, C More and BestWater. Hyperlinks, deep links, framed links and embedded links are discussed.
It focuses on the Opinion of the ‘European Copyright Society’ on the Svensson case. The ALAI Opinion is also briefly discussed.
This article proposes nine angles as part of the multi-factor test to determine whether linking is actionable under European Copyright law: four policy arguments (harmonization, high level protection, technology neutral, authorization) and five factors (‘making available’, ‘to the public’, ‘new public’, ‘intervention’ and ‘profit’).
The author concludes that properly balancing those nine factors can ensure that copyright and linking can tango, in step with existing policy goals and case-law, allowing linking in some situations, while requiring separate authorization in others.