Untangling the Hyperlinking Web: In Search of the Online Right of Communication to the Public

Quintais JP. Untangling the hyperlinking web: In search of the online right of communication to the public. Forthcoming J World Intellect Prop. 2018;1–36

Amsterdam Law School Research Paper No. 2018-16

Institute for Information Law Research Paper No. 2018-02

41 Pages Posted: 20 Jun 2018  

João Quintais

University of Amsterdam - Institute for Information Law (IViR)

Date Written: June 20, 2018

Abstract

This article examines the online right of communication to the public under EUlaw and its interpretation by the Court of Justice of the EU. The focus of the analysis is on the controversial application of the right to hyperlinking, and its implications for the online activities of users and intermediaries. After outlining the international and EU legal framework on the right of communication to the public, the article advances a conceptual framework for the interpretation of the exclusive right in the online environment, which is both based on, and attempts to bring coherence to, the Court's complex case law. On this basis, the article then explores and critically assesses the main areas of legal uncertainty for the online application of the right and the normative considerations at stake—especially fundamental rights and the promotion of technological development—offering interpretative and legislative solutions for their resolution. The article argues for abandoning the legislative proposals for a new right for press publishers and the so-called value gap, as both are fundamentally flawed. Instead, reform should focus on redefining the right of communication to the public and preserving safe harbors, especially for hosting providers.

Keywords: copyright, EU law, hyperlinking, intermediary liability, right of communication to the public

JEL Classification: K11, K19

Suggested Citation

Quintais, João, Untangling the Hyperlinking Web: In Search of the Online Right of Communication to the Public (June 20, 2018). Quintais JP. Untangling the hyperlinking web: In search of the online right of communication to the public. Forthcoming J World Intellect Prop. 2018;1–36; Amsterdam Law School Research Paper No. 2018-16; Institute for Information Law Research Paper No. 2018-02. Available at SSRN: https://ssrn.com/abstract=3199733

João Quintais (Contact Author)

University of Amsterdam - Institute for Information Law (IViR) ( email )

Rokin 84
Amsterdam, 1012 KX
Netherlands

HOME PAGE: http://https://www.ivir.nl/nl/medewerker/quintais/

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