Short answer
EU copyright does not treat every online use as “communication to the public”. The first task is to identify the act.
- A clickable link to a work freely available online with the right holder's consent normally does not reach a new public. A link that bypasses access controls, knowingly points to an unauthorised copy or is posted for profit without the required checks can amount to communication to the public.
- Framing or embedding authorised, freely accessible content generally follows the same logic, but circumventing effective anti-framing measures imposed or required by the right holder communicates the work to a new public.
- Re-uploading a work is not merely linking. It makes a fresh copy and can be a new communication even if the original page was freely accessible.
- A streaming service, configured device or cloud recorder may intervene deliberately in transmission or making available. Separate temporary or permanent copies can also engage the reproduction right.
- Ordinary e-books and digital media do not acquire a general “second-hand” resale right. Their on-demand supply is making available, a right that is not exhausted. Downloaded computer programs are different under the Software Directive: a perpetual licence supplied for a price corresponding to the copy's economic value can exhaust the distribution right, subject to strict conditions.
Begin with the exclusive right, not the technology label
Directive 2001/29/EC, the InfoSoc Directive, separates three relevant rights. Article 2 covers direct or indirect, temporary or permanent reproduction by any means. Article 3 gives authors the right to control communication and on-demand making available:
“members of the public may access them from a place and at a time individually chosen by them.” —
Article 4 covers distribution of originals and copies. Distribution can be exhausted after the right holder's first authorised sale or transfer of ownership in the EU, but Article 3 expressly says communication and making-available rights are not exhausted.
The Court of Justice uses interdependent criteria. There must be an act of communication and a “public”—an indeterminate but fairly large number of potential recipients. Deliberate intervention, a new public, a different technical means, knowledge and profit carry different weight according to the facts. “New public” does not replace the whole analysis.
Ordinary links to authorised content
In Svensson, C-466/12, the Court held that clickable links to authorised works already freely available online did not communicate them to a new public. A link does reach a new public where it bypasses subscriber, paywall or other access restrictions that confined the original audience.
GS Media, C-160/15, addressed links to works posted without consent. For a person not pursuing financial gain, the court asks whether that person knew or could reasonably have known the source was unlawful. Right-holder notice can establish knowledge. Where links are posted for profit, checks are expected and knowledge of unlawfulness is rebuttably presumed. Source, notices, business model and checking evidence matter; neither all hyperlinks nor all commercial links receive one automatic answer.
Embedding and framing depend on technical restrictions
Framing displays a work from its original server inside another page. If the work remains freely accessible with authorisation, uses the same technical means and no restriction is bypassed, the usual conclusion is no new public.
The position changes when the licence or publication is protected by effective anti-framing measures. In VG Bild-Kunst, C-392/19, the Grand Chamber held that embedding through framing:
“where that embedding circumvents measures ... to provide protection from framing, constitutes a communication to the public” —
Those measures limit the audience contemplated by the licence. An ordinary embed and a circumvention tool may look identical but have different legal consequences.
Uploading a new copy is different again. In Renckhoff, C-161/17, placing a photograph on a second website was communication to the public even though the authorised original had no download restriction. The new upload gave control to a different site operator and targeted that site's public. It also necessarily involved reproduction.
Geo-blocking can also define the territorial audience. In Anne Frank Fonds, C-788/24, state-of-the-art geo-blocking was effective even though a VPN could circumvent it, so publication was not communicated in the protected Member State. If geo-blocking is ineffective, the communication is attributable to the website publisher, not merely to a lawful VPN provider that did not play an indispensable role.
Streaming can involve both the operator and the viewer
A service that transmits or makes works available to users normally performs an Article 3 act. A device vendor can also intervene. In Filmspeler, C-527/15, a seller marketed a multimedia player with add-ons linking directly to unauthorised streams, advertised that access and acted for profit. The deliberate intervention gave customers easy access they otherwise would have found difficult. The sale was communication to the public on those facts.
Playback also creates temporary copies. Article 5(1) exempts them only where they are transient or incidental, integral and essential to a technological process, made solely for intermediary transmission or lawful use, and have no independent economic significance. The Court held in Filmspeler that temporary copies made while streaming from unauthorised third-party sites did not satisfy the exception.
This does not make every player or stream unlawful. Ask who organised the source, whether it was authorised, whether access depended on the intervention, what the operator knew, the audience and the commercial purpose.
Audience remains fact-specific. In VHC 2, C-127/24, simultaneous, unaltered retransmission of broadcasts through a retirement home's cable network to residents' rooms was not communication to the public: the residents were already within the public contemplated for the initial broadcast. Profit was relevant but not decisive.
Cloud recording is not automatically private copying
Private copying under Article 5(2)(b) is an optional exception implemented in national law, subject to fair compensation and the Directive's strict conditions. It does not automatically immunise a commercial recording service.
In VCAST, C-265/16, the provider captured television broadcasts and made selected programmes available to customers through remote cloud storage. The service both reproduced works and supplied a separate internet transmission to its own public using different technical conditions. The Court held that the private-copy exception could not authorise a commercial undertaking to provide that service while actively involving itself in recording without consent.
A storage provider that merely supplies neutral capacity may present different facts. The analysis must identify who selects the programme, obtains the signal, starts the copy, controls access and makes the recording available. National private-copy rules cannot remove a separate Article 3 communication right.
Digital resale: e-books are not downloaded software
In Tom Kabinet, C-263/18, the Grand Chamber classified the permanent-download supply of “second-hand” e-books as on-demand making available under Article 3, not distribution of a tangible copy under Article 4.
Because Article 3 is not exhausted, an earlier authorised download did not create a general right to resell another downloadable copy. The transfer also involves reproduction, which exhaustion of a distribution right would not independently authorise.
UsedSoft, C-128/11, reached a different result for computer programs under Directive 2009/24/EC. A right holder had authorised download and granted an unlimited right to use for a fee corresponding to the copy's economic value. That transaction was treated as a sale exhausting the software distribution right. A later acquirer could be a lawful acquirer entitled to reproduce as necessary to use the program.
The reseller must make its copy unusable, cannot split a multi-user licence to sell surplus seats and must transfer the exhausted copy and licence. Subscriptions, time-limited access, cloud software and services require separate analysis. UsedSoft is software-specific and creates no general digital exhaustion for books, music, films or images.
Conclusion
Linking authorised, unrestricted content normally does not communicate it to a new public. Circumventing access or anti-framing controls, knowingly directing users to unlawful sources, re-uploading, organising unauthorised streams or retransmitting broadcasts can produce a different result. Copies made along the way require a separate reproduction analysis.
Digital resale shows why the right matters. E-books and ordinary digital content are made available under a non-exhaustible Article 3 right, while qualifying perpetual software transactions may exhaust distribution under the Software Directive. The facts of consent, intervention, audience, copying and subject matter decide the category.
Sources
This article provides general legal information, not advice for a specific matter. Laws, facts and procedural deadlines may change the result. Follow the linked primary sources and obtain local advice before acting.