Svensson

Key takeaways

The case concerned links to freely accessible press articles. The Court of Justice clarified a key notion: for there to be a communication to the public, the work must reach a new public, one that the right holder had not contemplated when authorising the first communication.

In that case, the Court concluded that a link to a work that is already freely accessible reaches no new public, and so needs no authorisation. Applied to video games, the same test works the other way for players who stream their playthroughs or post them on YouTube: by showing the game to thousands of viewers who have not bought it, they do reach a new public. That is why, strictly speaking, the publisher can forbid it, even though in practice most publishers tolerate it.

Case law has since refined the criterion. With GS Media (2016), a link to content posted without authorisation becomes a communication to the public where the person posting it knows, or ought to know, that the source is unlawful, which is presumed where they act for profit. With VG Bild-Kunst (2021), circumventing a technical restriction put in place by the right holder amounts to reaching a new public.

For the broadcasting of gameplay, publishers have chosen to organise tolerance rather than prohibit. Most publish rules that allow videos of their games to be broadcast and monetised, subject to conditions. Legally, these rules are licences: they can be changed or withdrawn.