Linking on the Internet and Copyright Liability: A Clarion Call for Doctrinal Clarity and Legal Certainty

International Review of Intellectual Property and Competition Law, Vol. 49(5), pp. 536-564, 2018

Posted: 11 Feb 2019

See all articles by Cheng Lim Saw

Cheng Lim Saw

Singapore Management University - School of Law

Date Written: June 1, 2018

Abstract

Prompted by the decisions of the CJEU in Svensson and GS Media, this paper attempts to unmask the potential copyright liability of an Internet user who engages in hyperlinking, framing and/or inline linking from a principled and conceptually coherent perspective. The overall discourse in this paper will be guided by the following two questions:

(1) Do these forms of online activity constitute acts of communication (or making available) in the first instance?

(2) Should they fall within the purview of Article 3(1) of the EU Information Society Directive and be subject to potential primary/direct liability (as opposed to accessory/indirect liability)?

It is hoped that this paper will offer a rational view of the ongoing debate (and provide sensible answers to these questions) by drawing on the established jurisprudence of the courts in Europe, the UK and elsewhere as well as by having regard to the various interpretations of the concept of “publication” in the law of defamation (in particular, Canadian law).

Keywords: Communication (or making available) to the public right, Copyright, EU law, Defamation law, Hyperlinks, Framing, Inline linking, Knowledge, Consent, New public, Online infringement

Suggested Citation

Saw, Cheng Lim, Linking on the Internet and Copyright Liability: A Clarion Call for Doctrinal Clarity and Legal Certainty (June 1, 2018). International Review of Intellectual Property and Competition Law, Vol. 49(5), pp. 536-564, 2018, Available at SSRN: https://ssrn.com/abstract=3324035

Cheng Lim Saw (Contact Author)

Singapore Management University - School of Law ( email )

55 Armenian Street
Singapore, 179943
Singapore

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