In a recent ruling (PDF), a Spanish appellate court (Audiencia Nacional) has upheld the decision of the Spanish agency for the administrative enforcement of copyright — the Intellectual Property Commission (IPC).
The IPC had ordered that a torrent linking website (elitetorrent) remove some of its torrent links to protected works.
This is the first case where the Audiencia Nacional deals with an appeal against an order issued by the ICP and tackles the substance of the legal question at issue, i.e., whether the challenged links constituted a copyright infringement.
It concludes that the links were indeed a copyright infringement, and thus rejects the appeal brought by the webmaster.
The ruling holds that a link to non-authorized content amounts to an act of making available, and thus require the authorization of the rights holder. The court reaches this conclusion on the basis of the CJEU judgment in Svensson. There, the CJEU held that a link constitutes an act of communication to “a public”, albeit it does not need to be authorized where it points to a work which the right holders had made freely available on the Internet, as in that case the link does not target a “new public”, different than that already taken into account by the rights holders when they authorized the initial communication.
The Spanish Audiencia Nacional states that the Svensson criteria fully apply to the case at issue and concludes that the linking website carried out an act of communication to the public which did required the right holders’ authorization, as they “had not authorized the exploitation free of restrictions of their work on the Internet”.
Text of the ruling (in Spainsh) available here (PDF).