Building the Digital Single Market ‘by Proxies’: Making Sense of the CJEU Copyright Case Law on Hyperlinking

The Court of Justice of the European Union (CJEU) has been targeted with harsh criticism for its jurisprudence on Copyright Law. Lack of consistency in its interpretation of the law has been endorsed by many scholars, who emphasized the difficulty in anticipating on its future development.Assuming some kind of activism of the CJEU, we make the hypothesis that its interpretation of Copyright Law might actually be driven by the aim of building the digital single market. Indeed, current case law seems to build upon the jurisprudence prior legislative harmonization. At the time, interaction between national IP laws and competition law and free movement of goods/services has led to creative interpretation by the CJEU that was guided by the objective of achieving the internal market. As the distribution of creative contents has largely moved (entirely or in part) from the physical world to the digital one in the so-called information society, we suggest that the CJEU is using ‘proxies’ serving as vehicles for transposing some of its previous solutions to this new environment, subject to limitations of the law and taking into consideration particular features of such environment. In particular, we see the case law on hyperlinking as an example of such move. First, according to our reading, the criterion of the “new public” is used as a way forward towards a solution close to the exhaustion rule applicable to the distribution right. Second, the “fair balance” analysis proves an appropriate tool to mitigate some undesirable consequences of such an exhaustion rule on the Internet, for both users and authors.We conclude that if proven, the teleological interpretation with the aim of building the digital single market ‘by proxies’ might evidence some consistence in the reasoning of the CJEU and therefore serve as a guiding principle on related issues.