Internet hyperlinks do not infringe copyright, EU court advised

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Hyperlinking, at once an essential means of navigating the Internet, but also a frequent means to enable infringement of copyright, challenges courts to articulate the legal norms that underpin domestic and international copyright law, in order to ensure effective enforcement of exclusive rights on the one hand, while preserving open communication on the Internet on the other. Several recent cases, primarily in the European Union, demonstrate the difficulties of enforcing the right of communication to the public (or, in U.S. copyright parlance, the right of public performance by transmission) against those who provide hyperlinks that effectively deliver infringing content to Internet users. This Article will first address the international norms that domestic laws of states members to the multilateral copyright agreements must implement. It next will explore how two of the most significant regional or national copyright regimes, the E.U. and the U.S., have coped with the question of linking, and then will consider the relationship of the emerging approaches to copyright infringement with national and regional laws instituting limited immunity for copyright infringements committed by internet service providers. We will conclude with an assessment of the extent to which the outcomes under U.S. and E.U. regimes, despite their apparently different approaches, in fact converge.


Allowing rightholders to pursue copyright infringement action against those providing hyperlinks instead of just those individuals who actually post the infringing content would greatly threaten how the internet has evolved into a giant communication and information sharing technology. Instead of pursuing action to simply remove infringing content through takedown processes, rightholders may have an incentive to go after deeper pockets like news outlets or major technology companies. Hopefully the courts will come to their senses and protect the delicate balance between preserving the rights of rightholders and encouraging freedom of speech and innovation.


When someone infringes copyright, there are various courses of action that could be taken by the individual or organisation that owns or administers the copyright. The user of the image may be asked to purchase a licence, and a commercial arrangement might be reached after which no further action is taken. However, legal action might be taken by bringing a claim in court which could result in having to go to court for a hearing.


If someone takes a photo, copyright can exist in that photo. If someone takes a photo of a work protected by copyright, and the work forms an essential part of the image, using that photo on the web is likely to be an infringement of copyright. In other words, people are allowed to take a photo of a room of paintings, provided the inclusion of such paintings in the photo was merely incidental (e.g. they formed inessential background). However, you would need to be careful about copyright infringement if taking photos of specific paintings.





The courts have ruled that internet users should be free to share links to material, for example photos or videos, providing the material itself has been published online with the permission of the rights holder. The right to share links however does not go as far as allowing users to share links that are designed to circumvent paywalls or other subscription only services.


Even though it may be possible to copy content from the Internet, doing so may still be copyright infringement. Though it may appear that images, video, music, text, and other content online are available to be copied and distributed without need of permission, that is frequently not the case. Authors retain copyright, even if they post their works online.


The rights of a copyright owner are infringed if their work is

Internet Hyperlinks Do Not Infringe Copyright, EU Court Advised

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