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Liability for Providing Hyperlinks to Copyright-Infringing Content: International and Comparative Law Perspectives

65 Pages Posted: 12 Nov 2017 Last revised: 1 Dec 2017

Jane C. Ginsburg

Columbia University - Law School

Luke Budiardjo

Columbia University, Law School, Students

Date Written: November 3, 2017

Abstract

Hyperlinking, at once an essential means of navigating the Internet, but also a frequent means to enable infringement of copyright, challenges courts to articulate the legal norms that underpin domestic and international copyright law, in order to ensure effective enforcement of exclusive rights on the one hand, while preserving open communication on the Internet on the other. Several recent cases, primarily in the European Union, demonstrate the difficulties of enforcing the right of communication to the public (or, in US copyright parlance, the right of public performance by transmission) against those who provide hyperlinks that effectively deliver infringing content to Internet users. This article will first address the international norms that domestic laws of states member to the multilateral copyright agreements must implement. It next will explore how two of the most significant regional or national copyright regimes, the EU and the US, have coped with the question of linking, and then will consider the relationship of the emerging approaches to copyright infringement with national and regional laws instituting limited immunity for copyright infringements committed by internet service providers. We will conclude with an assessment of the extent to which the outcomes under US and EU regimes, despite their apparently different approaches, in fact diverge.

Keywords: Hyperlinking, Copyright, Copyright Law, Intellectual Property, Cyberlaw

Suggested Citation

Ginsburg, Jane C. and Budiardjo, Luke, Liability for Providing Hyperlinks to Copyright-Infringing Content: International and Comparative Law Perspectives (November 3, 2017). Columbia Public Law Research Paper No. 14-563. Available at SSRN: https://ssrn.com/abstract=3068786

Jane Ginsburg (Contact Author)

Columbia University - Law School ( email )

435 West 116th Street
Rm 710
New York, NY 10027
United States
212-854-3325 (Phone)
212-854-7946 (Fax)

Luke Budiardjo

Columbia University, Law School, Students ( email )

435 West 116th Street
New York, NY 10025
United States

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