In VG Bild-Kunst, the Grand Chamber of the ECJ has expressly held, for the first time, that

linking to a copyright work lawfully published on a third-party website may be restricted

through contract and not solely through technical restrictions on access (for instance, a

paywall). To this end, however, the concerned rightholder is required to adopt or mandate

the adoption of effective technological measures. Lacking these, an unauthorised act of

linking shall not be infringing. The judgment has important implications for the construction

of the right of communication to the public in the InfoSoc Directive 2001/29 and its

application to online scenarios, as well as for the interpretation of provisions in other EU

copyright directives, including the DSM Directive 2019/790. It also raises questions

regarding the compatibility of the Court’s reasoning with key tenets of copyright law, such

as the no formalities rule in the Berne Convention, and the prohibition of exhaustion of this

economic right.