Linking on the internet from a copyright perspective

Student thesis: Master thesis (including HD thesis)

  • Sophie Amalie Sigetty Bøje
  • Reem Barakji
4. term, Laws, Master (Master Programme)
This thesis aims to examine and critically analyze the interpretation of the communication to the public within the meaning of article 3.1 of the Infosoc-directive. The ambition of the thesis is therefore to provide a comprehensive picture of the legal situation regarding linking to copyright protected works published on internet with or without authorization from the copyright holder as well as the strictly legal and principally interpreted EU-harmonized interpretation of the transfer concept in the Infosoc-directive. In order to determine whether linking constitutes a communication to the public, the thesis is based on the legal dogmatic method.

This topic is highly relevant as there has been a rapid development in the digitalization spectra where new ways have arisen in which protected works are created, produced and distributed. The copyright legislation must adapt to a new digital reality while securing a fair balance of interests between rightsholders and users of protected works. As the possibility to easily access and share copyright protected works on the internet has increased, new requirements for legislation are necessary. In this context, linking – such as hyperlinks and embedded links – plays a central role in the use on the internet. However, linking is not mentioned anywhere in the Danish or European copyright legislation but must be deduced from the European Court of Justice (ECJ) case law. The copyright owner has an exclusive right to his work which includes an exclusive right to communicate his protected work to the public. This right is guaranteed by article 3.1 of the Infosoc-directive. The question is therefore, whether using a link to someone's copyright protected work published on the internet may infringe with the copyright legislation.

CJEU introduced the new public criterion in C-306/05 (SGAE) in regard to retransmissions on the internet. The new public criterion was further developed by CJEU in C-466/12 (Svensson) and C-348/13 (BestWater) which dealt with links that referred to freely accessible copyright protected works with the copyright holder’s authorization. From these cases, it can be concluded that linking to freely accessible copyright protected work put on the internet with the copyright holder’s authorization is not a ‘communication to the public’ nor that the works are made available to a new audience regardless of the technique chosen - unless the link allows circumvention of access restrictions.

Regarding linking to copyright protected works published on internet without authorization from the copyright holder it can be concluded from C-160/15 (GS Media) that this kind of linking imply that copyright protected work is made available to a new audience if the linking is done in bad faith, which is a presumption if the linking is done with a financial gain in mind. In C-160/15 (GS Media) CJEU also introduced two additional criterions in regard to cases concerning linking to freely accessible copyright protected works on internet but without the authorization of the copyright holder. These two additional criteria were “the knew or ought to have known criterion” and “the profit criterion”. The present dilemma consists of obtaining a judicious and “fair balance” between the interests of copyright holders to their copyright protected works while safeguarding the interests of internet users. It is to be concluded that the CJEU has not achieved a fair balance between the interests of copyright holders and the interests of internet users in the present legal system in regards to internet users who use links when the linking is carried out for profit in contrary to private internet users.
LanguageDanish
Publication date19 May 2020
Number of pages82
ID: 332567112