„The Court of Justice of the European Union has developed a significant case law on digital copyright law issues, including linking and streaming, in the previous few years. The CJEU has confirmed validity of the “new public theory” in the TVCatchup (Case C-607/11) and the Svensson rulings (Case C-466/12) with respect to hyperlinking and streaming. Later, the CJEU extended the Svensson ruling’s ratio on embedding of audiovisual contents in its BestWater order (Case C-348/13). These decisions follow a liberal approach in interpreting the activities of internet users. Indeed, separated from several other preliminary rulings of the CJEU, they seem to meet the needs of our modern age better than the conservative approach that declares any kind of linking or streaming as a relevant use of the exclusive economic rights of the authors and related right holders.

A closer look at other decisions of the CJEU in the ACI Adam (Case C-435/12), C-More Entertainment (Case C-279/13) and PPI v. Ireland (Case C-360/13) cases might reveal, however, the tensions of the CJEU’s liberal approach. Further, there might be some unforeseen consequences stemming from the above decisions. Two new references for preliminary rulings were submitted by Dutch courts recently [GS Media (Case C-160/15) and Stichting Brein (Case C-527/15)]. At worst, these might lead to the questioning of the validity of streaming services.

The presentation aims to introduce the development of the matrix of the CJEU’s case law, and raises a very difficult question: which pill should the CJEU take for the future: the red or the blue one?”

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