Hyperlinks and Making Available Right in the European Union: What Future for the Internet after Svensson?

Abstract

Hyperlinks, or more simply links, represent a fundamental instrument for programmers to build websites and for users to navigate the web. Internet, as we know it today, is a complex and interrelated net of contents at the disposal of surfers: in this scenario, hyperlinks represent the wires through which such net is weaved. Indeed, thanks to links, websites interrelates one with the other making it possible for users to gather, with a simple click, information scattered around several locations in the web. Moreover, linking has become today a crucial tool for the provision of old as well as new services on the web. Think about search engines of all kinds whose functioning is based on the release of links leading users towards the webpages containing information matching the keywords inserted in the query. Last but not least, linking has become a ordinary communication practice in social platforms where users post all kind of digital contents they wish to share with friends through the technique of so called inline links.

While the crucial role of linking within the structure and functioning of the overall internet is without doubt, linking practices have immediately attracted lawyers’ attention for their intrinsic capability of infringing third parties’ intellectual property rights of various kinds. As far as copyright is concerned, linking may present liability issues in several instances. On the one side, liability could be found when the link itself is infringing: for example, when the link (i.e. the pointer) contains a set of words which together can be protected by copyright (for example, headline news) or when the pointer is represented by a clickable thumbnail image protected by copyright. On the other side, liability issues may arise when the link is used as an instrument to point users to a certain digital content but the latter has not been released on the web with the author’s consent or had not been released by the author at all.

For the purpose of this paper, we will restrict the analysis to the question of whether the act of hyperlinking can amount to a direct infringement of copyright on the internet specifically by violating the making available right introduced by art. 3 of the Information Society Directive, a question recently posed to the Court of Justice of the EU by several national judges. The answer to this question is of tantamount importance for the development of new online services, to the benefit of internauts, but also to the protection of the freedom of expression which has always characterized the internet as we know it today.

Keywords: link, hyperlink, surface link, embedded links, framing, copyright, making available right, right of communication to the public, information society directive, Svensson, SGAE, implied license doctrine, Vorschaubilder, Paperboy

JEL Classification: K1