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

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