Framing links and the prohibition of formalities

Abstract

The Berne Convention of 1886 prohibits subjecting foreign copyright holders to formalities that control the enjoyment and exercise of their rights. This has given an important impetus to the ‘international’ protection of copyrights. This century, there is increasing attention for the drawbacks of a prohibition of formalities. Formalities may make it more difficult to clear rights because they limit possibilities to make the registration of rights mandatory or to find solutions for the use of orphaned works. In its recent decision in VG Bild-Kunst case, the CJEU has arguably introduced a new formality. A copyright holder who wants to exercise control over hyperlinks and framing links to their work, has to use effective technological protection measures to clarify for which public they seek to make their work available on the internet. The reason for requiring technology is to make it easier for those making links to know what links are allowed and which ones are not. However, if foreign copyright holders can invoke the prohibition of formalities and can enforce their rights against makers of links, even if they did not use technology, the goal of more clarity on permitted uses would not be achieved. This article investigates how the old prohibition of formalities relates to the proposed new uses of technology.