Hyperlinking, making available and copyright infringement: lessons from European national courts
This paper examines whether the provision of hyperlinks may constitute communication to the public by violating the author's exclusive 'making available' right. The assessment is accomplished through a comparative study of European case law, in particular, by discussing principles expressed in national case law, as well as in landmark CJEU cases, such as Svensson and GS Media. The analysis aims to show that European national courts, in their large majority, have concluded that hyperlinking is not an act of communication to the public. However, acts of infringement by means of hyperlinking have been generally captured under provisions and doctrines on indirect liability, such as contributory infringement or authorisation. I will argue that national laws on indirect liability, coupled with the provision against circumvention of technological measures, are sufficient to determine liability in cases where copyright infringement takes place via hyperlinking. This makes the discussion on whether hyperlinking is a direct infringement of the communication right largely speculative.
Keywords: hyperlinking; hyperlinks; making available right; communication to the public; Svensson; copyright; copyright infringement