Naslov
Hyperlinking to copyright works in EU: Finding a weak link

Autori
Kunda, Ivana

Vrsta, podvrsta i kategorija rada
Sažeci sa skupova, ostalo, znanstveni

Skup
ATRIP 38th Annual Congress "Recreating Copyright Law, Redesigning Design Law, Resourcing Trademark Law, and Reinventing Patent Law"

Mjesto i datum
Nashville (TN), Sjedinjene Američke Države, 25.08.2019. - 28.08.2019

Vrsta sudjelovanja
Predavanje

Vrsta recenzije
Međunarodna recenzija

Ključne riječi
EU law, copyright law, communication to the public, hyperlinking

Sažetak
Information Society Directive has been under particular scrutiny of the Court of Justice of the EU in the past five years due to many questions which have arisen in relation to hyperlinking to the webpage containing work protected by copyright. In 2014, the CJEU judgment in Svensson (C-466/12) stirred up the waters by introducing the concept of “new public” in defining the notion of an “act of communication to the public”, to explain that hyperlinking is not a form of exploitation of the work. On the contrary, reposting of the copyright work is an act of communication to the public and no analogy with hyperlinking may be drawn as it was recently cleared in Renckhoff (C-161/17). Further on hyperlinks, in its 2014 judgment in BestWater (C-348/13) the CJEU confirmed that technique of framing, to hide the original site to which the link is created, is technical means no different from that of the original communication and hence does not amount to an act of communication to the public. In GS Media (C-160/15), the CJEU clarified the situation in which hyperlinking concerned the copyright work initially posted on the internet without authorization of the copyright holder. In this context the questions which make part of the necessary analysis is whether the person creating hyperlink operates the site for profit or not. Depending on that the burden of proof shifts and it might become necessary to answer the second question as to whether that person knew or should have had known about the lack of authorization. Already the year later, in 2017, the judgment in Stichting Brein v Wullems (C-527/15) confirmed the broad interpretation of the act of communication to the public which includes the sale of a device with pre-installed add-ons containing hyperlinks to websites copyright works are posted without authorization of the copyright holders. Soon after, the CJEU tightens the belt around online operators when in Stichting Brein v Ziggo (C-610/15) it held that a sharing platform, such as Pirate Bay, which allows users to locate the works and to share them in the context of a peer-to-peer network is performing an act of communication to the public. Each of these judgments presents a fragment which has to be linked up to other such fragments to see the big picture and understand the regulatory system in which online operators may lawfully use one of the key online communication tools – hyperlinks. This paper is intended to provide the step-by-step analysis which will display the architecture of the system and inquire into weak or possibly missing links. One such weak link might be in the balance between the conflicting interests which the system is aimed at striking, being those of the rightholders, of the online operators and of the users. The burden of proof and knowledge standard are most certainly some of the crucial elements in balancing these public and private interests at stake. In this context, attention may need to be given also to the December 2018 decision by the European Court of Human Rights in Magyar Jeti Zrt which concerned the hyperlink, to what later was found to be the defamatory YouTube video. The Court found that the hyperlinker’s freedom of expression was violated by the Hungarian court that held it liable under the strict liability rule. Another weak link in the balancing of interests might relate to the type of liability which hyperlinkers are subject to: direct or secondary. Just as the different elements in the CJEU created system appear to point to different directions, other concerns such as the role the hyperlinkers play in the infringement as formerly recognized in the national case law or the essential nature of their involvement and proportions of infringement that takes place in the internet environment may also be difficult to reconcile in reaching the desired balance.

Izvorni jezik
Engleski

Znanstvena područja
Pravo

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