Copyright: Hyperlinks And The Communication To The Public Right

• Published date: 01 July 2020
• Subject Matter: Intellectual Property, Media, Telecoms, IT, Entertainment, IT and Internet, Copyright
• Law Firm: Kemp IT Law
• Author: Ms Deirdre Moynihan

The EU's InfoSoc Directive provides for the exclusive right to communicate works to the public. In this blog Deirdre Moynihan looks at how the rules have been applied to hyperlinking.

Article 3 of the EU's Information Society Directive[1] ('InfoSoc Directive') grants to rightsholders the exclusive right to authorize or prohibit any communication to the public of their works. This right and the scope of Article 3 has been the subject of a large number of cases, not all of which are reconcilable.[2] A full overview and analysis of all Article 3 case law is outside the scope of this section; our intention instead is to focus exclusively on the relationship between Article 3 of the InfoSoc Directive and the dissemination of protected works via hyperlinks.

The structure and use of the Internet has made it significantly easier to share content in different forms (including protected works) among large groups of people. Any Internet user can share a simple hyperlink to a video or article and, if that link goes viral, thousands of people will have viewed the shared content, often without consultation with or approval of the content owner. The inherent open and permissible functionality in the Internet is often therefore at odds with those aspects of copyright law that control exploitation of protected works. This tension has resulted in the CJEU considering whether the making available/sharing of a hyperlink amounts to copyright infringement under Article 3 of the InfoSoc Directive on the basis that making the hyperlink available cuts across the rightsholder's ability to control communication of the relevant works to the public.[3]

At first glance, it's difficult to envisage scenarios where sharing a hyperlink gives rise to copyright infringement[4] - hyperlinks are essentially functional in nature and simply make it easier to navigate through the Internet in a more direct and efficient way by directing the user specifically to the content they require without the need to visit other areas of the website first (or in some cases, the link avoids the need to log-in or subscribe).[5] It's this functional aspect of hyperlinks that clashes with the rightsholder's ability to control the communication of its works to the public - Internet users who share hyperlinks are also "communicating" content.

Elements of infringement of the communication to the public right

There are 2 elements to the infringement: (1) a communication and (2) that communication is made to a "public".

It's permissible to share content already made freely available by the rightsholder via hyperlink if the...