The Conflict Between Copyright and Hyperlinks

The Internet made content sharing an unregulated free flow, unless until legislators stepped in to give protection to authors’ rights and interests. A first attempt was made with Directive 2001/29/EC1 aiming to create a harmonized legal framework in which intellectual property is protected and providing authors with three exclusive economic rights: reproduction, distribution, and communication to the public. The Internet, being a notoriously complex environment to regulate, endangers the efficiency of copyright protection. Nonetheless, the Internet cannot be solely seen as the villain of the story, as it allows billions of individuals to engage in free discussions stimulated by the transmission of content. The result is a perpetual conflict between the openness of the Internet and the authors’ rights over their creations. The article aims to examine said conflict and its rationale, with emphasis added on the complex coexistence of online sharing and copyright protection. It will analyze the right of communication to the public with reference to five judgments rendered by the European Court of Justice and the issues deriving from the interpretation within the realm of hyperlinking. Furthermore, the list of limitations and exceptions provided by the InfoSoc Directive will be considered in its efficacy in being protective of opposing interests, with a focus on the balancing between copyright and freedom of expression. Finally, general remarks will be given.

“Communication to the Public”: A Complicated Definition

The concept of communication to the public is easily identifiable in an offline world where communicating intellectual works by public dissemination consists of a limited range of actions such as broadcasting and printing, however, in a digital environment it becomes blurry (Hugenholtz and Kretschmer, 2018). In fact, the Internet is filled with hyperlinks, namely clickable words redirecting to another website, allowing for the circulation and transmission of content (Arezzo, 2014). Article 3(1) of the InfoSoc Directive defines communication to the public as the making available of the work allowing people to access to it from any place and at any time. The CJEU took on the role of clarifying the notion and has even shaped its textual meaning by giving five preliminary rulings on whether the provision and managing of hyperlinks can be considered a communication to the public within the meaning of Article 3(1). The question is complicated given the troublesome nature of both outcomes: on the one hand, the disconnection between hyperlinks and copyright infringement would make the InfoSoc Directive void of its aim; on the other hand, declaring the infringing nature of hyperlinking would compromise the core of the internet as an open sharing environment (Hugenholtz and Van Velze, 2016).

Figure 1: The first printed Gutenberg Bible acquired by a US citizen (NYC Wanderer, 2009)

"Communication to the Public" in Light of the CJEU's Interpretation

In the Svensson case, the defendant had provided hyperlinks on his website redirecting to another website where the copyright-protected articles had already been published by the authors. The CJEU argued that the notion consists of two cumulative criteria: an act of communication and the presence of the public. It also ruled that a third criterion is essential in determining whether a communication to the public has occurred, namely the presence of a new public: a range of users who were not taken into consideration by the copyright holders when making the initial communication to the public. The CJEU was insightful in considering the technical means by which the communications were being made and since the same technical means were used in both communications, namely a publication on the Internet, and the initial publication resulted in the articles being freely accessible to all Internet users, no new public was targeted, resulting in the action not being a communication to the public and the authorization of rightsholders unnecessary.

The same conclusion was reached in BestWater, with the difference that the hyperlink redirected to a work allegedly published without the consent of copyright-holders. Yet, the CJEU ruled that it was not a communication to the public in the absence of a new public and different technical means of communication. The CJEU showed reluctance in enlarging the meaning of the notion but was unclear if the legality of hyperlinking depends on whether it redirects to works made available with the consent of copyright holders or not. Additionally, by specifying that there was a new public to be reached, the action would be a communication to the public, the CJEU opened the door for a reshaping of the use of hyperlinks. The CJEU relied on new criteria in GS Media. It ruled that the provision of hyperlinks to copyrighted works available on the Internet, without the consent of the rightsholders, consists of a communication to the public when the individual knows or ought to know that the works were illegally made available. Additionally, the profit-making nature of the action becomes sufficient to presume the knowledge of the individual. The same decision was confirmed in two subsequent judgments: Filmspeler and Stichting Brein. The former concerns the sale of a multimedia player on which there are installed adds-on redirecting users through hyperlinks to copyrighted works available on the Internet without the consent of the rightsholders, the latter about the making available and management by Internet access providers of unlawful sharing platforms for copyright-protected works without consent.

Figure 2: An example of a hyperlink (MDN web docs).

Pursuit of Financial Gain: A Broad and Unclear Criterion

The economic criterion becomes sufficient to presume the knowledge of the individual about the illegality of the action, it originates a problematic lack of certainty regarding the level of knowledge, blurring the difference between negligence and intentionality (Rosati, 2017). What the CJEU seemed to overlook is that hyperlinking is about the transmission of works already available online rather than initial uploading. Not considering the difference between the first uploader of protected works and the retransmission of illegal uploading is blatantly ignoring the difference between primary and secondary liability (Frosio, 2020). It also places a heavy burden on users who will have to ensure the legality of the works they are linking, prejudicing the openness of the Internet by transforming links in a synonym of uploading rather than a simple redirection to already published materials online, as suggested by Advocate General Wathelet (Wang, 2022). Overall, the profit-making criterion is far from being clear and risks fostering legal uncertainty by putting in the same category, for example, small bloggers and illegal streaming sites who, despite making profit from hyperlinks, do not act with the same intentionality and scale. Thus, it would be desirable perhaps to shift the burden from the shoulders of users, taking a path towards fair remuneration online. This solution is touched upon by Directive 2019/790 and could be achieved through a system of large-scale licensing agreements between platforms and collective management organizations, leading to remuneration and avoiding damaging the economic interests of copyright-holders. Taking into account that the solution would be only partial as authors’ interest, and right, to control initial publication would be marginally protected, it still would be a step forward towards a regulated digital world.

Content-sharing Platforms Become Liable: Towards a New Trend?

In Stichting Brein the CJEU, ignoring the opinion of the Advocate General to avoid imposing a presumption of knowledge on platforms operators to avoid general monitoring, set a precedent in the liability of online content-sharing providers, ruling that the managing and making available of a platform can be considered an act of communication to the public. It seems impractical for large platforms to be expected to examine all shared links, unless the CJEU is comfortable with accepting general monitoring of content, which however would be hard to reconcile with freedom of expression and privacy (Peguera, 2018). The CJEU’s interpretation suggests that it takes a village to protect copyright and, despite the content being uploaded by users, platforms become liable for copyright infringement, paving the way for a specific liability provision in Directive 2019/790 and raising issues of legitimacy for platforms called to decide what content to delete acting as quasi-judicial bodies. The EU trend of targeting platforms appears as a scapegoat and only conceals an inadequate framework where economic rights are not clearly defined.

Figure 3: A flow chart explaining the legality of hyperlinks (Sandcoip, 2016).

Limitations and Exceptions: The Safeguards to Opposing Interests or Just a Failed Balance?

The InfoSoc Directive provides an exhaustive list of limitations and exceptions for permissible uses of copyrighted works and indirectly protects fundamental freedoms such as freedom of expression and related rights of information. The list is not mandatory for Member States to implement according to several scholars who drew their conclusion from the wording of the provision, specifically referring to the sentence “Member States may provide” (Ghidini, 2013). This emphasizes the different protection granted to opposing interests that are outside the scope of harmonization, differently from authors’ economic rights that “[...] shall be” provided. Furthermore, the list is subject to additional criteria and evaluation. In Infopaq the CJEU introduced the three-step test later recalled in Filmspeler. Limitations, in fact, can be “[...] applied only in certain special cases which do not conflict with a normal exploitation of the work [...] and do not unreasonably prejudice the legitimate interests of the rightsholder.” The CJEU also stated that the exception to the exclusive reproduction right is subject to five cumulative criteria and that the exception must be interpreted strictly because it “[...] is a derogation from the general rule.”

It is interesting to emphasize the strict approach to exceptions compared to the broad definition given to the exclusive right of communication to the public. On the one hand, it offers the opportunity to finally grant effective protection to copyright in the digital world, on the other hand, it risks becoming unbalanced, leaving other freedoms disregarded (Rosati, 2020). In this scenario it seems unrealistic to hope that the list of internal exceptions will be sufficient to protect democratic freedoms and Internet users’ rights, urging the CJEU to accept a more flexible approach, one suggested by the ECtHR in accepting external limitations in Copyright. Furthermore, clarifying the criteria to distinguish between lawful and unlawful hyperlinks would be a desirable first step towards a legal certain scenario with a more balanced coexistence of different interests. Practically, one should not forget that it is the Internet we are dealing with. Ignoring the difference between initial communication and retransmission might refrain users to use the Internet as a space of engagement and ultimately limit their freedom of expression. The gap would be obviously best filled by EU legislators capable of imposing harmonized provisions on the use of hyperlinks rather than accepting a confused judge-made law or, worse, general monitoring by platforms (Szwajdler, 2020).

Figure 4: Hyperlinking in the light of GS Media judgement (Rosati, 2016)

After the examination of the exclusive right of communication to the public, it is evident that the CJEU gave a broad interpretation to the provision contained in the InfoSoc Directive, leading to a high level of protection, an aim clearly stated by the Directive, at the expense of an equal recognition of the freedom of expression, and linking, on the Internet. While it cannot be argued that in order to grant efficient protection to authors a minor sacrifice of the opposing side is inevitable, the CJEU has taken too much freedom, noticeably favoring copyright protection. The ambiguity of the criteria conceived by the CJEU and the one-size-fits-all characterization contribute to a confusing scenario where guidelines on how to act are blurry and in which one may prefer to stop sharing rather than navigating in rough waters. A desirable approach would be to make efforts in considering thoroughly the implications of hyperlinks and distinguishing between different levels of infringements. Additionally, the EU legislators should devote time to guiding users on how to link lawfully to avoid leaving the CJEU to only tackle one side of the coin. In this regard, the ECtHR has shown a different, and better-balanced, approach to hyperlinking and freedom of expression online which could be subject of further examination and comparison.43 Overall, the debate is of complex solution and the balance between the two sides remains fragile, but this should not be an excuse for EU institutions to avoid imposing harmonized positive legislation resulting in legal uncertainty.

Bibliographical References

Arezzo, E. (2014). Hyperlinks and Making Available Right in the European Union – What Future for the Internet After Svensson? IIC International Review of Industrial Property and Copyright Law 45(5).

Frosio, G. (2020). It’s all linked: How communication to the public affects the internet architecture. Computer Law and Security Review 37.

Ghidini, G. (2013). Exclusion and Access in Copyright Law: The Unbalanced Features of the European Directive ‘On Information Society’ (InfoSoc). Rivista di Diritto Industriale.

Hugenholtz, P.B & Kretschmer, M. (2018). Reconstructing rights: Project Synthesis and Recommendations in P. B. Hugenholtz (eds), Copyright Reconstructed: Rethinking Copyright's Economic Rights in a Time of Highly Dynamic Technological and Economic Change. Wolters Kluwer.

Hugenholtz, P. B and van Velze, S. C. (2016). Communication to a new public? Three reasons why EU copyright law can do without a ‘new public’. IIC - International Review of Intellectual Property and Competition Law 47(7).

Peguera, M. (2018). Hyperlinking under the lens of the revamped right of communication to the public. Computer Law & Security Review 34(5).

Rosati, E. (2019). Linking and Copyright: Easier at Last? First National Applications of the CJEU GS Media Judgment. EU Internet Law in the Digital Era.

Rosati, E. (2017). The CJEU Pirate Bay Judgment and Its Impact on the Liability of Online Platforms. European Intellectual Property Review 39(12).

Szwajdler, P. (2022). Limitations of the Freedom of Hyperlinking in the Fields of Copyright Law, Trademark Law and Unfair Competition Law: Is Case-by-case Approach Sufficient? Computer Law and Security Review 45.

Wang, Y. (2020). Assessing the Legality of Hyperlink in the Right of Communication to the Public. Advances in Economics, Business and Management Research 651.

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