HYPERLINK & INTERNET LIBERTY - OBSERVATIONS FROM CJEU SVENSSON CASE

Abstract

The evolving information technology facilitates not only the online distribution of works but also contributes rampant copyright piracy phenomenon. Activities such as illegal P2P fileswitching uploading unauthorized audiovisual works on platforms (i.g. Youtube or Dailymotions) for the public have threatened rightholdersʼ interests. Recently, the copyright “pirates” use the hyperlink technology in the so-called contents aggregator websites, which enable users to read articles or watching videos from the platforms without quitting the current websites. Shall the copyright holderʼs rights be protected against the act of communication of works to the public by means of Internet hyperlinks? If the answer is yes, how shall we conserve the liberty of using hyperlinks, which are technically vital to operate Internet and socially essential to access information? In fact, the Internet consists of enormous amount of hypertext pages (“webpages”), which are interconnected by hyperlinks. A typical user of a hyperlink on the current host website will be taken to the linked website through the hyperlink, and can there retrieve target information (copyrighted works) on the userʼs computer. However, evolving web language skills (such as frame linking or deep linking) enable Internet users to access information provided by the target website on the current host website, without actually going to the target website. According to Article 8 of World Copyright Treaty of World Intellectual Property Organization (WIPO WCT), the author is entitled to enjoy the right of communication of his works to the public as one of the exclusive rights. “Public communication” means to make available or communicate to the public the content of a work through sounds or images by wire or wireless networks, or through other means of communication, including enabling the public to receive the content of such work by any of the above means at a time or place individually chosen by them. The infringer of the right of communication to the public risks both civil liability and criminal sanction in the national laws. However, the question whether the act of providing hyperlinks constitutes the infringement of the public communication right has been debated in the recent cases in the European Union Court of Justice of the European Union Hitotsubashi Journal of Law and Politics 46 (2018), pp.75-81. C Hitotsubashi University