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A Comparative Analysis of Hyperlink to A Copyright-Infringing Material in The EU, The US and Australia
Tilburg Institute for Law, Technology and Society LLM Law and Technology 2016/2017
REIHAN PUTRI PRIMASATYA U918667/2000441
Thesis Supervisor Dr.Mr.Ir. M.H.M. Schellekens Second Reader Emre Bayamlıoğlu August 2017
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Table of Contents ...... 1 Chapter I ...... 1 1.1 Background ...... 1 1.2 Research Questions ...... 3 1.3 Methodology and Structure ...... 3 CHAPTER II HYPERLINK AND COPYRIGHT ...... 5 2.1 Definition of Hyperlink ...... 5 2.2 Types of Hyperlink ...... 6 2.3 Copyright Law in The European Union ...... 10 2.4 Copyright Law in The United States of America ...... 13 2.5 Direct Infringement ...... 15 2.6 Indirect Infringement ...... 16 2.7 Copyright Law in Australia ...... 17 2.8 Copyright Infringement in Australia ...... 19 Chapter III ...... 24 3.1 The European Union Ruling on Hyperlink Cases ...... 24 3.1.2 Svensson and Others vs Retriever Sverige AB (C-466/12) ...... 24 3.1.2 BestWater International GmbH v Michael Mebes and Stefan Potsch (C-348/13) ...... 25 3.1.3 GS Media v Sanoma Media Netherlands and Others (C-160/15) ...... 26 3.1.4 Post GS Media Judgment ...... 29 3.1.4.1 Sweden ...... 29 3.1.4.2 Czech Republic ...... 30 3.2 The United States Ruling on Hyperlink Cases ...... 31 3.2.1 Cases Related to Hyperlink ...... 32 3.2.2 Cases Related to Hyperlink to a Website which Contain Copyright Infringement ...... 32 3.3 Australia Ruling on Hyperlink Cases ...... 36 CHAPTER IV ...... 38 4.1 Hyperlink: Direct or Indirect Copyright Infringement ...... 38 4.2 Hyperlink Allowed or Not Allowed ...... 41 4.2.1 Linking to Copyright-Infringing Material ...... 42
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4.2.2 Identifying Commercial Purpose ...... 44 4.2.3 Knowledge of the Author about the Legality ...... 44 4.3 Copyright Infringement in Other Form of Linking...... 48 4.3.1 Inline Linking ...... 49 4.3.2 Framing ...... 49 4.3.3 Deep Linking ...... 49 4.4 Communication to The New Public ...... 50 4.5 Discussion ...... 50 4.6 Conclusion ...... 52 CHAPTER V ...... 53 5.1 Conclusion ...... 53 5.2 Suggestions ...... 54 Annex I ...... 55 Bibliography ...... 61
Chapter I
INTRODUCTION
1.1 Background Digital technologies especially the internet seems to be the new staple in life for most of the people in this millennial era, it has emerged from a research network for a largely for-profit enterprise.1 Ever since the year 2000 to 2015, the user base of the internet has grown from 6.8% of total world population to 43.4% of total world population, and it keeps on growing.2
Linking is an activity that is very close to internet users. Most regular users of the internet engage in linking on a regular basis.3 Linking is the key factor that distinguishes hypertext from conventional types of publishing.4 Hyperlinks to third party online content make internet surfing and social media possible.5 Linking was both encouraged and accepted when the Internet was a research network.6 In most cases, linking does not have any legal impact. However, there might be times when linking may lead to liability for the person who provides the link and/or the operator of the website on which the link is made available.7
The rapid development of digital technologies brings threat to copyright in digital media; it is impossible to make a new copyright regulation each time a case comes up. Therefore the essence of
1 Maureen A O’Rourke, ‘Legal Issues on the Internet: hyperlinking and Framing’ (D-Lib Magazine 1998) http://www.dlib.org/dlib/april98/04orourke.html, accessed 29 November 2016 2 Data accessible real time at http://www.internetlivestats.com/internet-users/ 3 Nail James and Thomas Middleton, ‘To Link, or Not to Link? The Legal Risks of Linking’, (Clayton UTZ, 1 April 2014)
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copyright law should remain intact, and copyright infringement should be assessed in the light of established copyright principles.8
Practical problems are raised by hyperlinks in the print and digital media sphere, both for publishers and rightsholders.9 As a rightsholder, when internet users post a hyperlink to unauthorised or leaked content, brand or reputational damage are often the primary concern, particularly as it can be too difficult to make sure that all of the links are taken down once a leak has spread and gained attention.10 Another concern is about the loss of exclusivity of the content; the more people posted hyperlink of the content the easier it becomes to be found and might be used more intensively.
A hyperlink makes it simpler to connect from one page to another page available on the internet. However the usage of a hyperlink could lead to some problems regarding copyright infringement, uploading material that infringed someone’s copyright is unquestionably illegal, but how about providing hyperlink to content that has been publicly available on the internet which contains copyright infringement? Is the one who posted that hyperlink also responsible? Is it necessary to apply primary copyright infringement in such situation?
The recent judgement of European Court of Justice on GS Media vs Sanoma case11 brings a new perspective in terms of providing hyperlink to an unauthorised content. The main emphasis is on the “communication to the public” term, especially because the judgement is totally the opposite from the opinion of the Advocate General, and the result also came up pretty different with previous cases related to hyperlink and copyright infringement such as Svensson vs Retriever Sverige AB (C-466/12) and BestWater International (C-348/13).
8 Sam C van Velze, ‘Communication to A New Public: A Critical Analysis of the CJEU’s ‘New Public’ Criterion in European Copyright Law’, (Thesis Research Master, Universiteit van Amsterdam 2009), 7 available at
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This particular judgement has created a lot of discussion in society. The legal discussion in this case mainly focused on the implications of linking to copyrighted material.12 The outcome of the GS Media vs Sanoma judgement resulted in new duty for people before making hyperlink to investigate further whether the website they are linking to contains copyrighted material or not, in order to avoid being accused of copyright infringement they have to make sure that the hyperlink does not direct towards copyrighted material that is published unlawfully. This investigation duty may or may not always be realistic in the internet context, thus exposing people to unacceptable risk such as being accused of copyright infringement. Furthermore, the “for-profit” provision also catch the attention. This thesis will discuss more on the outcome and possible implications of the judgement and compare it with the judgements in similar cases in The US and Australia.
1.2 Research Questions
The research question in this thesis is as follows
1. How do different legal jurisdictions rule on the hyperlink to the content which infringed copyrights?
Sub-questions:
1. What kind of actions related to hyperlink could be determined as copyright infringement? 2. How does a hyperlink could be determined as copyright infringement in The EU, US, and Australia? 3. What kind of prevention should be done by people before they post a hyperlink to avoid infringing someone’s copyright?
1.3 Methodology and Structure
To answer the research questions described above, this thesis will be fully based on comparative literature research. The study will start off by giving an explanation about hyperlink and copyrights, then reviewing the judgement in the case of hyperlink to a website which content infringed copyright in different countries: The US, Australia, and The EU. They have been selected because The EU has just recently come
12 Piter de Weert, ‘The Netherlands: A Hyperlink to Unfindable Files’, (Wolters Kluwer, 17 Januari 2014), http://kluwercopyrightblog.com/2014/01/17/the-netherlands-a-hyperlink-to-unfindable-files/ accessed 17 January 2017
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up with the judgement of GS Media vs Sanoma case which gives the main idea of this topic. The Cooper vs General Music case in Australia is one of the most remarkable and controversial cases in Intellectual Property area. The US because The US has most cases regarding the hyperlink to unauthorised content yet it has an entirely different approach in handling copyright infringement than The EU, the case that will be discussed is the Flavaworks. Inc vs Gunter and Pearson Education Inc, et al vs Lazar Ishayev. The EU adopted civil law systems while Australia and The US are using a common law system , looking at how they deal with such cases must be able to give a broader point of view and will enrich the argumentation.
As for the structure of this thesis, the first chapter will discuss about the background, research questions, methodology and structure. This study will give an explanation of what is a hyperlink and the kind of hyperlinks available, and how the law on copyright works in The EU, The US and Australia. This will be discussed in chapter 2. In chapter 3 there will be an in-depth discussion about the cases about hyperlink to unauthorised contents in The EU, The US and Australia. This study will discuss about the judgement of case laws in terms of hyperlink to a website which content infringe copyright in those three different jurisdictions. In chapter 4 there will be an analysis of the similarity and differentiation, and the comparison of those judgements and how copyright law in each jurisdiction deal with the particular condition, hyperlinking to unauthorised content, which cases were discussed in the previous chapter. In the last chapter, there will be a concluding remark.
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CHAPTER II HYPERLINK AND COPYRIGHT
To give a good understanding of the underlying issues on the topic, in this chapter we will have an overview of what hyperlink is, and what are the types of hyperlink that could be found on the internet. It will then be followed by a description of the relationship between hyperlink and copyright in general, and the regulation in the three different jurisdictions chosen. Since the main topic of this thesis is how each jurisdiction rules on the hyperlink which infringes copyright, then we will take a look at the relationship between hyperlink and copyright infringement.
2.1 Definition of Hyperlink
Hyperlink stands for hypertext linking. Hyperlink are references to other web sources or Internet addresses (or Uniform Resource Locators - URLs). 13 The Web is established on a technology called "hypertext," which enables users to link directly from one source of information to another, the type of computer or the location of equipment didn’t matter.14
Hyperlink is a citation of an electronic address where you can find more information but, additionally, navigates the surfer immediately to material hosted anywhere on the Internet.15 When selected by a user, it enables transition from one document to another (on the same or a different server) or connects different parts of the same document16 by a simple click of a mouse.17 A HTML instructions or hyperlink directing an internet user to an individual website which is comparable as an act of giving the recipient driving directions to another website on the Internet.18
13 Athanasekou P. Eve, 'Internet and Copyright: An Introduction to Caching, Linking and Framing', Work in Progress, 1998 (2) The Journal of Information, Law and Technology JILT), 3.
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The World Wide Web (WWW) is a system of interlinked hypertext documents. 19 Such documents constitute text that is not constrained to a linear manner of representation but may contain links to other texts instead, providing a connection from one resource to another.20 Linking is an essential feature of the internet since it allows quick access to information on the world wide web that would be hardly available otherwise.21 Linking is the key factor that distinguishes hypertext from conventional types of publishing.22 Without links, the web would only be an enormous pile of independent text documents that may be read on a screen one at a time but offer no means for making “activatable” references and incorporating other material.23
Linking is indispensable for the operation of the internet.24 In principle, linking increases the audience of a website and cannot be regarded as undesirable.25 A hyperlink does not contain any substantive content; in that important sense, a hyperlink differs from a zip file.26 There is no website without the existence of hyperlink.
2.2 Types of Hyperlink
Links are easy to spot on any web page since they usually (although not always) appear as line(s) of blue- coloured (often underlined) text.27 Sometimes, when the mouse is directed to a link, it could change the cursor appearance into a hand motif. This is not always the case though; there are also link without differentiation in appearance as long as you can click the text or picture. However, although the appearance of the text is mostly similar and the purpose of every link is the same, there are many types of links.
Normal Links:
Webpages are written in the HyperText Markup Language (HTML), this kind of language is different from programming. Programming consists of instructions while Markup is, in brief, information.28
19 Pessi Honkasalo (n4) 260 20 Pessi Honkasalo (n4) 260 21 Dimitrios Maniotis et al, Cyber Law In Greece, (Kluwer Law International 2011) 54 22 Pessi Honkasalo (n4) 260 23 Pessi Honkasalo (n4) 261 24 Dimitris Maniotis (n21) 54 25 Dimitrios Maniotis (n21) 54 26 InfoLawGroup LLP (n18) 27 Athanasekou (n13) 3 28 Pessi Honkasalo (n4) 261
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Markup languages are data formats that contain coded notations for describing data and representing information.29HTML is used for specifying the structure of a document, and later could be given a desired layout so-called style sheets.30
There are three ways of linking to other material on the web in Basic HTML: (a) the hypertext link from an anchor (HTML "A" element), (b) the general link with no specific source anchor within the document (HTML "LINK" element) and (c) embedded objects and images (IMG and OBJECT).31 A and LINK are called "normal" links as they are visible to the user as a connection between two documents,32 while the invisible element in an HTML between a document and an embedded image or object or subdocument is called "embedding" links.33
Normal links to another web resource are specified with “a” element, such resource might be another HTML document or any file format whatsoever.34 The “href” attribute defines the destinations of the link.35 Therefore Normal links consist of the start and end tags of the “a” element (it could be textual, graphical, and/or audio-visual) and the address of the file which they refer.36
Normal hypertext links do not necessarily imply that the document linked to is endorsed by, is part of, or endorses, or has related ownership or distribution terms with the document it’s linked from.37 Nonetheless, embedding material by reference (sometimes called an embedding form of hypertext link) will cause the embedded material to become a part of the embedding document. 38
Frame Linking / Framing:
“Framing” indicates the practice of linking to content in a way that the linked content is “framed” by content on the website which incorporates the link.39 Framing refers to the practice of dividing a web
29 Pessi Honkasalo (n4) 262 30 Pessi Honkasalo (n4) 262 31 Tim Berners-Lee, ‘Links and Law’, (April 1997)
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page into multiple sections that use HTML code to pull content from different sources.40 Framing is used to split a website into separate windows, which function independently and display individual web pages.41 These views can be open in independent windows or internal sub-windows depending on the type of frame used and are designed.42 The title of the page and other windows remain static, while the user is able to browse linked sites through the frames.43 Creating a hyperlink to another website in such a way makes the person who is accessing the web didn’t recognize that they are actually viewing another website.44
Framing allows two or more website to appear on the user’s screen simultaneously.45 Thus, framing could be a useful navigation tool for the user because one frame could remain static while the user navigates through the content within another frame.46 Although the user sees the secondary site within the frame but the first site’s URL is what appeared on the user’s browser.47
In-Line Links / Inlining:
“Inlining” which sometimes referred to as “mirroring” is the process of incorporating a graphic file from one website onto another website.48 Inline linking enables the insertion of an image, for example, a logo, from another webpage into a site, while the user does not have to leave the linking site in order to view this image.49 In-line linking or now commonly refer as embedding involves putting a line of HTML on your website that so that your webpage displays subject directly from another site.50 For
40 Berkman Center for Internet and Society, ’Linking to Copyrighted Material’, (Digital Media Law Project, 2014),
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example is many bloggers have videos from YouTube embedded to their blog post to illustrate a point or initiate discussion.51
Surface Links:
Surface link is a link that is made to direct you to the homepage of the website.52 This is the common type of link when the link is directing to another website, this type of link also the one that is desired by the website owner when you make a hyperlink.
Deep Links:
A ‘deep link’ is also known an 'embedded link.'53 A link that is made to direct you to the subpage of the website54. A deep or embedded link guides the user to an inside page of a site bypassing the connected site's landing page 55
Most websites have a central “home” page to which all subsidiary pages are linked.56 Web site publishers most likely expect users to visit their site through this home page as a front door and get around the website using the website’s own links to subsidiary pages.57 With this expectation in mind, most websites put the introductory material, highlights, as well as third party paid banner advertisements on that homepage. 58 Deep linking which bypass the homepage directly to the subsidiary page makes the expectations of the website publisher that the visitor will see the banner, highlights, and other things on the home page are not met.59 Subsequently, numerous small businesses have endured due to this loss of income from advertisement.60 Also, when one website deep links into another website, users could be misleading that the two websites are related.61
Deep linking may create problems in some situations such as:62
51 Berkman Center for Internet and Society (n40) 52 Dimitrios Maniotis (n21) 56 53 Copyright Advisory Groups School and TAFEs (n44) 54 Dimitrios Maniotis (n21) 56 55 Copyright Advisory Groups School and TAFEs (n44) 56 Mark Sableman, ‘Link Law revisited: Internet Linking Law at Five Years’, Berkeley Tech Law journal, 2001, 20 available at
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The material is presented out of its introduced out of its appropriate setting, especially if the material is not properly attributed;
The user thinks that they are reaching material on your site and not the linked website. This might boost to claims of deceiving conduct under trade practices laws;
The client does not see and thus does not keep any notices or conditions contained in the landing page in connection with the utilization of that material. This may bring about a claim that you are approving the utilization for infringing copyright.
In any case, it is important to note that deep linking is currently regular practice and there has been no lawsuit on deep linking in Australia, in spite of the above concerns. Deep linking is probably not going to cause problems for Schools or educational systems.63
2.3 Copyright Law in The European Union
It took some times before copyright law made it first appearance in the provisions of the EEC Treaty of 1957. The top reason why copyright law did not come earlier in The EU and relatively become a focus in a late stage probably is that due to language barriers and the diverging cultures of the Member States.64
The EU's administrative system for copyright and neighbouring rights (acquis) currently is an arrangement of ten directives, addressed to the EU Member States inter alia:65
• InfoSoc Directive • Rental and Lending Directive • Resale Right Directive • Satellite and Cable Directive • Software Directive • IPRED • Database Directive • The term of protection of copyright and certain related rights amending the previous directives, 2006
63 Copyright Advisory Groups School and TAFEs (n44) 64 Anette Kur, Max Planck and Thomas Dreier, European Intellectual Property Law: Text, Cases And Materials (1st edn, Edward Elgar Publishing, Inc 2013), 243 65 European Commission, ‘The EU copyright Legislation’, (Digital Single Market, Digital Economy & Society, 28 August 2015),
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Term Directive • Orphan Works Directive • CRM Directive There are also three others additional instruments harmonize the legal protection of topographies of semiconductor products.66 Moreover, the E-commerce Directive and Conditional Access Directive also contains provisions which are relevant to the exercise and the enforcement of copyright.67
However, the copyright in The EU is firmly based on the principle of territoriality which implies that national rules govern copyrighted subject matter within the area of the Member States.68 Even there is harmonization by The EU copyright Directives, but national laws may differ from one another because the Member States have made different use of implementation provided by the Directives themselves.69
The overall goal of the EU harmonization endeavours is to empower copyright protected goods (e.g. books, films, music, software, etc.) and services (e.g. services offering access to these products) to uninhibitedly moving within the internal market.70
A significant portion of the EU directives reflect Member States' duty under the Berne Convention and the Rome Convention, as well as the responsibility of the EU and its Member States which can be found in the World Trade Organisation 'TRIPS' Agreement as well as the two 1996 World Intellectual Property Organisation (WIPO) Internet Treaties consist of the WIPO Copyright Treaty and the WIPO Performances and Phonograms Treaty.71
In this study, we will pay attention more on the InfoSoc Directive or the Directive on the harmonisation of certain aspects of copyright and related rights in the information society which was established on 22 May 2001. As The InfoSoc Directive is the most comprehensive piece of legislation, the EU has adopted in the field of copyright.72
66 European Commission (n65) 67 European Commission (n65) 68 Anette Kur, Max Planck and Thomas Dreier (n64) 245 69 Anette Kur, Max Planck and Thomas Dreier (n64) 245 70 European Commission (n65) 71 European Commission (n65) 72 Andrea Renda et al, 'The Implementation, Application And Effects Of The EU Directive On Copyright In The Information Society' (Centre for European Policy Studies 2015), 6
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2.3.1 The Copyright Owner’s Exclusive Rights
Copyright includes literary and artistic works such as novels, poems and plays, films, musical works, artistic works such as drawings, paintings, photographs and sculptures, and architectural designs.73 Rights related to copyright include those of performing artists in their performances, producers of phonograms in their recordings, and those of broadcasters in their radio and television programs.74
Exclusive rights entitled the holders of the Intellectual Property Rights to utilize the protected work and, in the meantime, to prohibit others from such utilization. If other want to make use of the said protected work they should have permission in the form of transfer or license from the initial rights holder.75
Exclusive rights can be divided into two categories, exploitation rights and moral rights. Exploitation rights are as follows:
2.3.1.1 The Rights of Reproduction
The definition of the reproduction rights in the InfoSoc Directive can be seen that it is taken from the specific Directives on information goods, for example, computer programmes and databases. 76 The definition of this right is written as “…the exclusive right to authorise or prohibit direct or indirect, temporary or permanent reproduction by any means and in any form, in whole or in part…” of copyrighted works and of performances, phonograms, films and broadcasts protected by the neighbouring rights.77
2.3.1.2 The Rights of Communication to The Public
Article 3 of the InfoSoc Directive grants authors, performers and the producers of copyrighted works with the exclusive right “…to prohibit any communication to the public of their works, by wire or wireless means, including the making available to the public of their works in such a way that members of the public may access them from a place and at a time chosen by them.”78
73 World Intellectual Property Organization, ‘Industrial Property Statistics Glossary’ (WIPO)
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In order to determine a communication to the public, the CJEU presuppose an indefinite number of potential listeners, and, furthermore, entails a rather massive amount of persons.79 Also, the benefit making nature of the communication assumes a part in that it must constitute an extra administration performed with the point of acquiring some advantage and not simply be gotten by chance by the end- users.80
2.3.1.3 The Rights of Distribution
The rights of distribution encompass the selling of physical media embodied the protected work; it is different with the previous rights which involve more the spread of the protected work in a digital environment (via the internet).81
2.3.1.4 Adaptation, Translation, Arrangement (Copyright in the Database Directive)
Article 5(b) Database Directive (Directive 96/9/EC) stated that the author of a database should have the exclusive right to carry out or to authorize translation, adaptation, arrangement and any other alteration of a database. Not only in the database but also in computer programs, adaptation, arrangement and any other alteration of computer programs are exclusive rights of the rightsholder as regulated in Article 4(1)(b) Software Directive (Directive 2009/24/EC) .
2.4 Copyright Law in The United States of America
Copyright in the United States is governed by the Copyright Act of 1976.82 The Internet was not precisely a major presence in society in 1976, which proposes the current copyright law in the country was designed without considering a single Internet-related issue.83 While the Copyright Act has been updated and augmented since 1976, the relationship amongst copyright and hyperlinks is still a cumbersome one.84
The other Transitional and statutory provision that is related to hyperlink and copyright infringement is The Digital Millennium Copyright Act 1998.
broadcasting…’ This implies that the right covers, specifically, the interactive on-demand transmission of copyright works over computerized systems (see Recital 25). 79 Anette Kur, Max Planck and Thomas Dreier (n64) 50 80 Anette Kur, Max Planck and Thomas Dreier (n64) 50 81 Andrea Renda et al (n72) 39 82 Richard Chapo, ‘Do Hyperlinks Infringe Copyright’, (Law Office of Richard A Chapo, 3 September 2015),
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Since copyright in common law countries gives right holders a shield against unauthorised exploitation by another, historically, a very low threshold fulfilled the prerequisite of originality.85 Compilation copyright exist where the author had either (a) exercised sufficient ‘labour, skill or judgement’ – industrious effort; or (b) combined materials in a different manner from what had been in use before,86 and so granted to the resulting product some ‘quality or character which the raw material did not have, and which discerns the product from the raw material.’87
There are two key issues to consider when evaluating if a hyperlinking could be considered as copyright infringement in The US. The first one is whether there is enough volume of content at issue to qualify for copyright protection.88 One should then take a gander at the actual page being reached via the hyperlink.89 To be categorized as infringement, the substance being referred to must be copied by the culpable party.90 Courts have been extremely reluctant to decide that a link constitutes the copying of a copyrighted work.91
2.4.1 The Copyright Owner’s Exclusive Rights
Section 106 of United States Copyright Act (US Code No. 17) regulates about the exclusive rights in copyrighted works belongs to the rights holder.
Subject to sections 107 through 122, the owner of copyright under this title has the exclusive rights to do and to authorize any of the following:92
(1) to reproduce the copyrighted work in copies or phonorecords;
(2) to prepare derivative works based upon the copyrighted work;
(3) to distribute copies or phonorecords of the copyrighted work to the public by sale or other transfer of ownership, or by rental, lease, or lending;
85 Hasan A Deveci (n16) 468 86 Hasan A Deveci, Emerson v Davies [1845] 3 Story 768, at 778–779 87 Hasan A Deveci, Macmillan & co v Cooper [1924] 40 TLR 186, at 188. The case concerned textbooks consisting of extracts from existing works with appropriate comments guiding students. 88 Richard chapo (n82) 89 Richard chapo (n82) 90 Richard chapo (n82) 91 Richard chapo (n82) 92 U.S. Copyright Office, 'Chapter 1 - Circular 92 | U.S. Copyright Office' (Copyright.gov, 2017)
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(4) in the case of literary, musical, dramatic, and choreographic works, pantomimes, and motion pictures and other audiovisual works, to perform the copyrighted work publicly;
(5) in the case of literary, musical, dramatic, and choreographic works, pantomimes, and pictorial, graphic, or sculptural works, including the individual images of a motion picture or other audiovisual work, to display the copyrighted work publicly; and
(6) in the case of sound recordings, to perform the copyrighted work publicly by means of a digital audio transmission.
The United States as the member of the World Intellectual Property Organization (“WIPO”), together with other member states met in Geneva, Switzerland in 1996 to update their legislation towards copyright. They come up with the WIPO Internet Treaties which was regarded as balanced and forward thinking.93 Among different accomplishments, the Treaties confirmed the operation of exclusive rights in the online environment, including the prerogative of authors to authorise “the making available to the public of works in such a way that the society might approach these works from a place and at a time which they choose themselves.”94
In The US which adopted the common law system, the courts have taken the lead in considering the pertinent arrangements and developing theories of secondary liability. 95 Therefore, there is a differentiation between direct infringement and indirect infringement.
2.5 Direct Infringement
In order to fulfil the direct infringement category, there are two requirements to be met: (1) the plaintiff must show ownership of the allegedly infringed material, and (2) they must demonstrate that the alleged
93 Maria A. Pallante, The Making Available Right In The United States A Report Of The Register Of Copyrights (United States Copyright Office 2016) 1
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infringers violate at least one exclusive right granted to copyright holders under the Copyright Act. 17 U.S.C.A. §§ 106, 501(a).96
2.6 Indirect Infringement
Copyright infringement is a tort97 and intentionally enabling or inciting another is a tort as well.98 A third party may be discovered liable for direct infringement of a copyright, patent, or trademark committed by another under a theory of secondary liability if the third party eagerly induced, encouraged or materially contributed to the infringing activity.99
Indirect infringement has various arrangement including infringement by inducement, contributory infringement, and vicarious infringement.100
These kind of infringements apply as well to the liability follows.
Liability under The US Law can be divided into two categories, the first one is direct liability or the liability of the direct actor and the second one is Secondary liability (or downstream liability). This is the responsibility for the actions of another party.
There are three kinds of secondary liability which are: vicarious liability, contributory liability and inducement liability.
• Contributory liability: Contributory Infringement pertain where one party consciously induces, causes, or otherwise materially contributes to the infringing conduct of another.101 Contributory liability is a personal conduct that forms part of, or furthers, the infringement, or the contribution of machinery or goods that provide the means for infringement. Key elements: knowledge and material contribution to (or enabling) the act itself. (fault-based liability).
96 PERFECT 10, INC, a California corporation vs AMAZONCOM, INC, a corporation;Com Inc [2007] United States Court of Appeals, Ninth Circuit, Nos. 06–55405, 06–55406, 06–55425, 06–55759, 06–55854, 06–55877. (United States Court of Appeals, Ninth Circuit). 97 Latman and Tager, ‘Innocent Infringement of Copyright’, 2 Studies on Copyright 139 (Fisher memorial edition 1963) 98 Ginsburg and Ricketson, ‘Inducers and Authorisers’ (2006) 11 Media & Arts Law Review 1, 3, available at http://ssrn.com/abstract=888928 accessed on 4 July 2017 99 Cornell University Law School, 'Indirect Infringement' (LII / Legal Information Institute)
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• Vicarious liability: Liability of the superior for the behaviour of his subordinate. Key element: right and/or ability to control (strict liability; no fault required). Vicarious liability applies under the circumstances where – usually an employer- has control over someone else and also enjoys a direct financial benefit from that someone’s infringing conducts.102
• Inducement liability: acts or words that manifest an intent to induce others to conduct that infringes when at least some of those others actually infringe in part because of the acts or words.
2.7 Copyright Law in Australia
There are some regulations regarding copyright in Australia, inter alia.
Copyright Act 1968: Copyright exists in works and another subject-matter by the Copyright Act 1968. The only exception to this is about certain limited privileges rights of the Crown in regard to copyright in Acts of Parliament. 103 Although the Copyright Act was established in 1968, it determines how copyright administer work created both before and after that date. The Copyright Act has been regularly rectified since 1968 to keep it up with the evolving technologies and concerns. Correspondingly, to dealing with copyright rights, the Copyright Act also deals with performers’ rights and the “moral rights” of individual creators.104
Regulations: The Copyright Regulations 1969, the Copyright Tribunal (Procedure) Regulations 1969 and the Copyright (International Protection) Regulations 1969 specify matters related to the operation of the Copyright Act.105
Other than that Australia is also a party to a number of international copyright treaties and conventions including:106
• Berne Convention for the Protection of Literary and Artistic Works (Berne Convention)
• World Trade Organisation Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS Agreement)
102 William M. Landes and Douglas Gary Lichtman (n101) 398 103 Australian Government Attorney General’s Department 104 Australian Copyright Council, ‘An Introduction to Copyright in Australia’, (Australian Copyright Council, January 2017), 1
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• WIPO Copyright Treaty
• WIPO Performances and Phonograms Treaty
• International Convention for the Protection of Performers, Producers of Phonograms and Broadcasting Organisations (Rome Convention), and
• Convention for the Protection of Producers of Phonograms Against Unauthorised Duplication of their Phonograms (Geneva Phonograms Convention).
2.7.1 The Copyright Owner’s Exclusive Rights
Owners of copyright have various kind of exclusive rights to their material. Anybody who wants to utilize someone else’s material in any of these ways generally needs permission.
2.7.2 Reproduction Rights
Owners of literary, dramatic, artistic and musical works have the exclusive rights to reproduce the work, which including certain activities such as photocopying, copying by hand, filming, recording and scanning.107
2.7.3 Make The Work Public for the First Time
Owners of literary, dramatic, artistic and musical works have the exclusive rights to be the first one to make their work public.108
2.7.4 Communicate The Work to the Public
Owners of literary, dramatic, artistic and musical works have the exclusive rights to communicate their work to the public whether it is via fax, email, broadcasting, cable, internet, etc.109
2.7.5 To Perform the work in The Public
Owners of copyright in literary, dramatic and musical works have additional exclusive rights which are to perform the work in the public, including performing a work live, or playing a recording or showing a film containing the work, in a non-domestic situation.110
107 Australian Copyright Council (n104) 5 108 Australian Copyright Council (n104) 5 109 Australian Copyright Council (n104) 5 110 Australian Copyright Council (n104) 5
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2.7.6 To Make an Adaptation
Owners of copyright in literary, dramatic and musical works have other additional exclusive rights which are to make an adaptation (for example, translation or dramatised version of a literary work, translation or “nondramatic” version of a dramatic work, or an arrangement or transcription of a musical work).111
2.7.7 Showing Films and Playing Recording in Public
This exclusive rights belong to the owners of copyright in films, sound recordings, broadcasts and published editions to copy their material, one of which is to showing films and playing the recording in public.112
2.7.8 Transmitting Films and Sound Recordings To The Public
This exclusive rights belong to the owners of copyright in films, sound recordings, broadcasts and published editions to copy their material, one of which is to transmitting films and sound recordings to the public using any form of technology for example via email, broadcasting, cable or the internet.113
2.7.9 Rebroadcasting Television and Sound Broadcasts
This exclusive rights belong to the owners of copyright in films, sound recordings, broadcasts and published editions to copy their material, one of which is to rebroadcasting television and sound broadcasts.
2.7.10 Rental rights
Owners of copyright in computer programs, sound recordings and works on sound recordings (such as music) have the exclusive right to rent out articles such as compact discs and CD-ROMs.114
2.8 Copyright Infringement in Australia
2.8.1 Direct Infringement
The Copyright Act 1968 provides that the copyright in a literary, dramatic, musical or artistic work is directly infringed when these categories are fulfilled:115
111 Australian Copyright Council (n104) 5 112 Australian Copyright Council (n104) 5 113 Australian Copyright Council (n104) 5 114 Australian Copyright Council (n104) 5 115 Australia Copyright Act 1968 Sect 36 (1)
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A person who is not the owner of the copyright; And without the licence of the owner of copyright; Does or authorizes the doing in Australia, of any act comprised in the copyright.
The phrase ‘any act comprised in the copyright’ refers to the acts that are provided in Article 31 (1) of The Copyright Act 1968 listed as the exclusive rights as mentioned before.
2.8.2 Indirect Infringement
However, copyright could be infringed not only directly but also in other ways which are referred to as ‘indirect infringement’. Indirect infringement of copyright occurs when a person authorises the doing of an act comprised in the copyright without the licence (without permission) of the copyright proprietor.116 Authorisation is a different form of infringement, which is distinct from general law principles of joint tortfeasors and vicarious liability.117 For example, if a person allows a place of public entertainment to hold an unauthorised performance of work then this would amount to an infringement of copyright.118 Various commercial affairs with infringing articles (such as importing or selling bootleg DVDs or CDs) also constitute infringements of copyright.119
Section 101 of the Copyright Act 1968 Section 101 provides that authorizing a person to infringe copyright is itself an infringement of copyright.120
In 2000, the Copyright Act 1968 was amended as part of the Copyright (Digital Agenda) Amendment Act 2000) by the addition of s 36(1A). It contains a list of components that must be considered by a court in determining if a person has authorised a conduct in Australia of any act comprised in the copyright of work, without permission of the rightsholder.121 These are as follows:122
a. the extent (if any) of the persons’ power to prevent the doing of the act concerned; b. the nature of any relationship existing between the person and the person who did the act concerned;
116 Jason Goldschmied, 'A BATTLE ROYAL: DIGITAL MUSIC PIRACY V. THE MUSIC INDUSTRY. AN ASSESSMENT OF AUSTRALIAN COPYRIGHT LAW' (Doctorate of Legal Science (SJD) Thesis, Bond University 2008) 143. 117 Ginsburg and Ricketson (n98) 11 118 Jason Goldschmied (n116) 145 119 Jason Goldschmied (n116) 145 120 Brendan Scott, Kazaa: Time To Rethink Authorization? (1st edn, Open Source Law 2005) 1
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c. whether the person took any reasonable steps to prevent or avoid the doing of the act, including whether the person complied with any relevant industry codes of practice. 2.9 Hyperlink and Copyright
Ideally, you do not need to bother with authorization for making a normal link to another site's home page.123 In the event that there is some concern over the link, most issues can be solved by having the connected site consent to a linking agreement that gives authorization for your link.124
In most cases, the hyperlink usage, just like the road sign usage, is unlikely to create liability by itself.125 But if it is used improperly as part of a broader illegal scheme, hyperlinks can indeed lead to liability.126 The possible infringement made by hyperlinks are derivative liability doctrines like inducing infringement, contributory infringement, and vicarious liability.127
However, the purpose of a hyperlink which connects one site to another sometimes brings out the problem regarding intellectual property right infringement. Controversy mainly arise because either the composition or functionality of the hyperlink can potentially infringe property rights of the claimant, it could act as a navigation tool authorising or contributing to infringement of copyright by a third party.128
Hyperlink is like a double edged blade, while it offers an incredible opportunity for everyone to access or publish information online, it also presents a disastrous nightmare for the copyright industry, which anticipates a giant, global copy machine with the capacity to disseminate pirated versions of a work around the world.129
123 FindLaw (n60) 124 Rich Stim (n48) 125 Mark Sableman, ‘Hyperlinks are Lawful Unless You Use Them Unlawfully’, (Thompson Coburn, 9 august 2013),
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Linking is an essence of the Web and a primary source of copyright conflicts.130 This is because of any linking results in a copy (or copies) created in the memory [more precisely, random access memory (RAM) and on the hard drive of the user’s computer.131 Whether these copies constitute a copyright infringement depends on the way the copies’ creator is identified.132
Copyright is a maker’s exclusive right seeing to certain acts of exploitation or use of the work. Which acts of exploitation or use of work are subject to copyright is laid down in copyright law. For It is comprised of a variety of exclusive economic rights to do certain demonstrations with an original work or another copyright topic. 133 These rights incorporate the right to copy, publish, communicate (for example broadcast, make available to the public through the internet) and public performance of the copyright material.
The actions of hyperlinking that mostly categorized as copyright infringement are embedding, framing and hyperlinking which have certain common characteristics inter alia, (1) The copyright protected content is on a third-party website; (2) Transmission of the copyright substance is from the third-party website to the end user’s computer; (3) The end user knows that he/she is on a third-party website while clicking a hyperlink; (4) The end user may not know that he/she is on a third-party website when the copyright content is framed; and (5) The end user cannot realize that he/she is on a third-party website when the copyright content is embedded.134
Tim Berners-Lee, the founder of world wide web himself, said that the assumption that a normal link is an affectation to copy the linked document in a way which infringes copyright is a genuine misconception.135 The capacity to refer to a document (or a person or anything else) all in all is a fundamental right of free
130 Tanya Shkolnikov, ‘To Link or Not to Link: How to Avoid Copyright Traps on The Internet’, (2002) The Journal of Academic Librarianship, 133 < http://www.sciencedirect.com/science/article/pii/S009913330200280X> accessed 27 February 2017 131 Tanya Shkolnikov (n130) 133 132 Tanya Shkolnikov (n130) 134 133 Australian Government Attorney General’s Department, ‘Short Guide to Copyright’, (Australian Government Attorney General’s Department, October 2012), 2
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speech to a similar degree that speech is free.136 Making the attribution with a hypertext link is more efficient but changes nothing else.137
He insisted that there is no reason to have to ask before making a link to another site or in other words permission is not needed.138 However, you are responsible for what you say about other people, and their sites, on the web just like anywhere.139
2.10 Conclusion
Regarding the topic a quo, since hyperlink brings people from one page to another page, and open up new places on the internet, hyperlink can be classified as a communication to the public, which is an exclusive rights in all three jurisdictions. Although the web cannot stand without hyperlink, and the usage of hyperlink is not prohibited, a misuse of hyperlink might contribute to infringement of the said exclusive rights.
136 Tim Bernes-Lee (n135) 137 Tim Bernes-Lee (n135) 138 Tim Bernes-Lee (n135) 139 Tim Bernes-Lee (n135)
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Chapter III
THE CASES REGARDING HYPERLINK IN THE EUROPEAN UNION, THE UNITED STATES OF AMERICA, AND AUSTRALIA
In this chapter, we will take a look at the judgment in the cases regarding hyperlink in three different jurisdictions. The European Union, The United States of America and Australia. We will see what the similarity and differences among those cases and how different jurisdictions rule on those cases are.
3.1 The European Union Ruling on Hyperlink Cases
3.1.2 Svensson and Others vs Retriever Sverige AB (C-466/12) Retriever Sverige is a Swedish company which conducts a website through which users get the hyperlink to an article on another website. Svensson and the other petitioners are all journalists whose articles are published in the Göteborgs-Posten newspaper and also on the newspaper's website, where they were accessible for free.140
Retriever Sverige provided hyperlinks to these articles on the Göteborgs-Posten website without the authorization of their respective authors.141
The main question brought to the European Court of Justice is, does anyone other than the holder of copyright in a particular work which supplies a clickable link to the work on his website constitute communication to the public within the meaning of Article 3(1) of Directive 2001/29/EC?
European Court of Justice, on February 13th, 2014, issued a ruling on this hyperlink case, in that decision CJEU ruled that links not infringe copyright as long as the material is “freely accessible”142 on another
140 Graham Smith, Phil Sherrell, and Will Smith, ‘CJEU decision in Svensson – Hyperlinks to freely available content are permitted’ (Bird and Bird, 13 February 2014), https://www.twobirds.com/en/news/articles/2014/global/cjeu- decision-in-svensson-hyperlinks-to-freely-available-content accessed 26 March 2017 141 Graham Smith, Phil Sherrell, and Will Smith (n140) 142 Freely accessible or freely available content means the content which is uploaded to the internet, can be accessed by anybody on the internet, the initial target is everyone on the internet, and not subject to technical access restrictions which only give permission to particular person such as subscriber. However, the detail of technical access restrictions does not explain by CJEU which let each national court to determine.
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website.143 "The owner of a website may, without the authorisation of the copyright holders, redirect internet users, via hyperlinks, to protected works available on a freely accessible basis on another site," said the European Court of Justice decision.144
The court decided that links not grasp a “new public” inside the importance of Sec. 3 (1) of the Directive 2001/29/EC since the content is already freely available to all internet users on the original website (the newspaper website).145
This decision made sense under this condition, yet there were still doubts: the extent of what is “freely available” was not explained comprehensively in the Svensson case.146 Nor were there consent issues with the writers of the news articles. 147 These writers realized that their content would end up on the newspaper website, so it ought to be no surprise to them that other sites linked it.148
In this case, CJEU found that the provision of clickable links to copyright protected works must be considered to be an act of communication. However, to determine whether there is a new communication to the public it requires that the protected content be communicated by either different technical means than the initial communication, or is directed at a new public - a public that was not considered by the copyright holder when he authorized the initial communication.149
3.1.2 BestWater International GmbH v Michael Mebes and Stefan Potsch (C-348/13) The claimant of this case (Bestwater International GmbH) is a company who sells water filtering system; it has a copyright of a short promotional video on environmental pollution and its conceivably negative outcomes on drinking water, entitled “Die Realität” (“The Reality”). In 2010, the video was – allegedly without the claimant’s consent- uploaded to YouTube. The two defendants, therefore, made the video accessible on their websites through framing, which implied that the video was not uploaded by them, but rather made accessible in a frame in which third party content, stored on a different independent
143 Svensson and Others v Retriever Sverige AB (C-466/12) 144 Dave Neal, ‘Website Links to Free Content Don't Infringe Copyright, Rules ECJ Less Aggravation, More Aggregation’ (The Inquirer, 14 February 2014),
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website. As to watch the video, internet users needed to click on a link which then began to play it by retrieving the video from the YouTube server.150
The claimant kept up that by utilizing the frame, the video was, without his consent, made freely accessible within the meaning of Article 19a German Copyright Act (Art 3(1) InfoSoc-Directive) and filed proceedings before the court of Munich. The case then referred to CJEU.151
The case is questioning whether a website administrator who installs copyright secured recordings in his website by framing infringes the copyright on these recordings.152 The main question was, does framing constitutes a communication to the public under Art 3(1) InfoSoc-Directive (2001/29/EC)?153
In this judgment, CJEU in dependence on existing case law in expected that to establish a new communication to the public according to Article 3(1) Infosoc-Directive 2001/29/EC. The copyright- protected work must have been publicised by technical means, which either contrast from technological means with which the underlying communication was carried out, or communicated to a new public. For example, a public that was not reckoned by the copyright holders when they authorised the initial communication to the public.154
3.1.3 GS Media v Sanoma Media Netherlands and Others (C-160/15) The most recent case regarding hyperlink ruled by CJEU is the GS Media v Sanoma Media Netherlands and Others (C-160/15), this case regarded as a landmark case. This case will also be the highlight of this thesis.
In October 2011, GS Media in its website Geenstijl.nl publishes articles enclose a hyperlink which directs the reader to another website (filefactory.com) containing the unpublished pictures of Britt Dekker a Dutch TV Presenter, that photos were meant for the forthcoming Playboy magazine. That pictures were leaked before its official publication, after getting a notice from Sanoma, Filefactory.com remove the files from their website, yet Geenstijl put another hyperlink to ImageShack.us which also contains the same pictures, despite the notification and request from Sanoma.155
150 Benjamin Schuetze, ‘Bestwater: CJEU embeds decision on framed content in order’, (Kluwer Copyright Blog, 3 ovember 2014)
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Sanoma and others then brought this case to the district court of Amsterdam where they came up with a conclusion that the hyperlinks published by Geenstijl constituted a "communication to the public" in the sense of Article 3 of Directive 2001/29. However, The Gerechtshof Amsterdam (Amsterdam Court of Appeal, The Netherlands) annulled that decision. Considering that, by making the hyperlinks on the GeenStijl website, GS Media had not infringed Mr Hermès’ copyright, inasmuch as the photos at issue had already been made available to the public before they were published on the Filefactory website (paragraph 18).156
The case then brought to The Supreme Court of The Netherlands which decided to remain the proceedings and to point out the following questions to the Court of Justice for a preliminary ruling : a. does hyperlink means as an act of publication if it refers to a website which has published/make the content public beforehand? b. if someone posted a hyperlink to a third party website which content infringed somebody’s copyright, is that considered as an “act of communication to the public” as referred to in Article 23 of Directive 2001/29? c. is it necessary to someone to acknowledge whether a content in a website has been posted under consent of the maker/owner/right’s holder of the content before they post a hyperlink to that website?
Advocate General (AG) Wathelet advice for this case is that linking is not an act of communication to the public. Therefore a hyperlink to a website which content infringed someone’s copyright does not fulfil the term communication from the first place.157
Moreover, he said that the criterion “new public” is not satisfied in this case because the right holders had not authorized the initial communication to the public when another website made it public the first time.158
156 GS Media v Sanoma Media Netherlands and Others [2016] CJEU, C-160/15 (CJEU) 157 Opinion of Advocate General Wathelet on Case C-160/15 paragraph 50-54 available at http://curia.europa.eu/juris/document/document.jsf?text=&docid=175626&pageIndex=0&doclang=EN&mode=re q&dir=&occ=first&part=1&cid=385439 158 Opinion of Advocate General Wathelet on Case C-160/15 (n157)
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Especially, a link could be considered as a public communication if the link provides the free access to the work for the very first time. On the other hand, this is not the case if the content is freely available on the internet (not protected) but is not easy to be found.159
AG Wathelet said that if hyperlink to an illegal content on the internet should be considered as copyright infringement then it would “significantly impair the functioning of the internet” and could “distort the fair balance of rights and interests between the different categories of rightholders, as well as between the different categories of rightholders and users of protective subject-matter”.160
AG Wathelet opinion suggests the questions are to be answered in negative.
The CJEU confirmed that for the application of Article 3(1) of Directive 2001/29/EC, two cumulative elements are necessary to be fulfilled: first is an ‘act of communication’ and the second is ‘a public’. Furthermore, the interpretation of Article 3(1) requires an independent assessment of further criteria, which are not autonomous and are interdependent, for example, ‘those criteria that may, in different situations be present to widely varying degrees, and must be applied both individually and in their interaction.’ (paras 32–34) This enabled the court to adopt some flexibility.161
A new perspective is brought by the judgement of GS Media v Sanoma Media Netherlands and Others (C- 160/15). In this judgement it held that so as to evaluate whether a website link to a work set online without the consent of the rights holder is a communication to the public, it should first be resolved whether the links are given other than for financial gain by somebody who did not know, and could not sensibly have known, that the linked-to publication was unauthorised.162 Provided that this is the case, the link does not fall under a communication to the public.163
159 Opinion of Advocate General Wathelet on Case C-160/15 (n157) 160 Opinion of Advocate General Wathelet on Case C-160/15 (n157) 161 Bianca Hanuz, ‘Linking to unauthorised content after the CJEU GS Media decision’, Journal of Intellectual Property Law & Practice 2016; 11 (12): 879-881. doi: 10.1093/jiplp/jpw166 162 Graham Smith and Will Smith, ‘CJEU's GS Media Copyright Linking Decision Draws A Line: Ordinary Internet User Or Commercial Website?’, (Bird & Bird, 8 September 2016),
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Be that as it may, if the link was brought by somebody acting for financial gain, then full information of illicitness must be assumed.164 The link would then add up to correspondence to the public unless the assumption of knowledge were disproved.165
3.1.4 Post GS Media Judgment
GS Media judgment is seen as one of the landmark judgment, it didn’t follow the previous cases in Svensson and Bestwater, nor it follows the opinion from the advocate general.
The ramification of GS Media ruling is that entities that take part in expansive scale of hyperlinking to clearly illicit sources can at no time in the future hide behind the fact that they “merely” provide hyperlinks and are not the slightest bit capable or can be considered responsible for the infringement of copyright and the mischief that it brings.166
Although it is still full of controversy, some judgments in some member states in The EU has been following the precedent of judgment in GS Media vs Sanoma case.
3.1.4.1 Sweden Attunda District Court
In 2012, Swedish National Rebecka Jonsson recorded her Australian friend’s bungee jump from the Victoria Falls bridge. The 111-metre jump immediately transformed into a nightmare as the bungee cord snapped and Jonsson’s friend fell into the water full of crocodile although, in the end, she managed to get to the shore.167
Jonsson’s friend was able to fully recovered and then the two were contacted by an Australian TV station that was fascinated by this story. Jonsson consented to a restricted licence for the TV station to present the recording she had made on the Australian television. She at no time has ever uploaded the film on the internet and did not give anyone else approval to do that.168
164 Graham Smith and Will Smith (n162) 165 Graham Smith and Will Smith (n162) 166 Dirk Visser, 'Hyperlinking To An Illegal Source Is An Infringement Of Copyright' (Leidenlawblog.nl, 2016)
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When the recording was later made available online, the Australian TV station confirmed that it only had presented the part they have been agreed upon and had not illegitimately sold third parties any rights over it.169
After GS Media ruling rather than just looking at whether the preserved work had been uploaded without the copyright owner's permission, the court also examined whether the defendant had provided the link for pecuniary reason and, if so, whether the defendant could disprove the presumption of having prior knowledge.170
The court figured that the defendant had administered the link for pecuniary reason as it was done on a news website. The defendant was not able to disprove the presumption. The defendant had explained that the recording was free of rights since it had been uploaded on YouTube and there is possibility to embed. However, the defendant was not able to justify that this had been done under Jonsson’s consent.171
3.1.4.2 Czech Republic District Court for Prague
In 2013, a Czech teenager was found guilty of criminal offences for linking his website to around 2500 films which are protected by copyright. Those movies were not hosted on his servers, but freely available on the internet without the authorisation of the relevant copyright holders.172
The court concluded that where the embedding is not carried out to gain financial profit, it must be presumed that the person did not and could not have known that the initial communication was unauthorised.173 Instead, where a link is provided aiming to gain profit, the knowledge of the unauthorised character of the initial communication must be presumed.174 The court further clarified that where it can be demonstrated that the person knew or could have known that a link would direct to a work made available on the internet without permission (for example on the basis that relevant rightsholders notified
169 Eleonora Rosati (n168) 170 Eleonora Rosati (n168) 171 Eleonora Rosati (n168) 172 Juraj Vivoda ‘Czech court finds that linking to unlicensed content does not infringe copyright if the website is not operated for profit.’ Journal of Intellectual Property Law & Practice 2017 jpx047, 1. doi: 10.1093/jiplp/jpx047 173 Juraj Vivoda (n172) 1 174 Juraj Vivoda (n172) 1
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the link provider to this effect) the provision of such link constitutes an act of communication to the public within the meaning of Article 3(1) of the InfoSoc Directive.175
The application of the GS Media presumptions by this Czech court has culminated in a broad understanding of what a profit-making intention encompass. The court considered any advertisement placed on the defendant’s website as possibly relevant to such appraisal.176
The conclusion that we could seize from The EU cases, even though some case law picture is patchy and some inconsistent, there are things that could be highlighted, such as simple linking is admissible in most jurisdictions under copyright law aspects. 177 Some jurisdictions, notwithstanding, see a potential copyright accountability if the content of the link itself encloses copyright-protected language.178 Deep- linking may likewise raise concerns in certain jurisdictions.179
According to the Copyright Directive or Infosoc Directive (Directive 2001/29/EC) Article 3(1), the Directive states that writers are equipped “with the exclusive right to authorise or prohibit any communication to the public of their works, by wire or wireless means, including the making available to the public of their works in such a way that members of the public may access them from a place and at a time individually chosen by them.”180 Therefore the biggest question is whether links are an act of “communication to the public.” If that is the case, then website owners would need permission from the copyright owners which basically harm the way how the internet works: setting one link from one website to another.181
The European judges found that permission needed in case of the hyperlinks are directed to a “new” public.182 The court defines “new public” as if it “was not taken into account by the copyright holders when they authorised the inaugural communication to the public.”183
3.2 The United States Ruling on Hyperlink Cases
175 Juraj Vivoda (n172) 1 176 Juraj Vivoda (n172) 2 177 Philipp Plog et al, ‘An Overview of International Jurisprudence on Embedded Linking and Framing and Related Unfair-competition, Passing-Off and Trademarks Questions’ (Fieldfisher), 3
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The hyperlink and copyright infringement case in The USA seems like have been taken place earlier compared to The EU. In 1998, Dan L Bruk an Associate Professor at Seton Hall University School of Law published his research titled “Proprietary Rights in Hypertext Linkages”, there were at least four recent cases of The US related to hyperlink and copyright infringement were addressed in his research paper.184
3.2.1 Cases Related to Hyperlink Simple linking in The US ruled as a no copyright infringement. This can be seen from the pertinent case law Ticketmaster Corp, and others v Tickets.com, Inc, District Court of Central California, 27 March 2000. In this case, it was held that simple linking itself did not violate US copyright law because no copying is involved if the link refers the user to the “genuine article.”185 The court additionally held that the ‘fair use’ doctrine allows the reproduction of non-protectable, factual information. Which is the thing that the defendant had been copying (for example merely factual information identifying with the dates and venues of concerts and the way that tickets could be obtained on Ticketmaster’s website) and after that displaying the information to users in its standard arrangement.186
As for the embedded linking, case law is inconsistent. Relevant cases are Leslie A Kelly v Arriba Soft Corporation, US Court of Appeals for the Ninth Circuit, February 2002. In this case, The US decision in the held that embedding or framing of images from another site on a Linking Site disregarded the exclusive right of the right holder to demonstrate its works to the public.187
Perfect 10 v Google, 16 May 2007. The finding, in this case, held that the framing of photographs by Google in its picture search results was not copyright infringement.188 The court considered that the framed photographs were in fact links which just permitted users to view on Google some portion of a web page from the site which had initially posted the pictures.189
3.2.2 Cases Related to Hyperlink to a Website which Contain Copyright Infringement The previous cases show us that the usage of hyperlink mostly didn’t infringe copyright in The USA. Whereas, the circumstance changes when you intentionally link to works that unmistakably infringe somebody's copyright, like unauthorised music files or video clips of monetarily dispersed movies and
184 Dan L Bruk, 'Proprietary Rights in Hypertext Linkages', 1998 (2) The Journal of Information, Law and Technology (JILT)
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music videos.190 In this circumstance, you might be accountable for what is known as "contributory copyright infringement."191 Contributory copyright infringement happens by "intentionally inducing or encouraging direct infringement" of a copyrighted work.192
As long as you have no idea that a work infringes someone's copyright, then you cannot be held accountable for contributory infringement for guiding users to that work. 193 Then again, it is not necessarily safe to just claim that you "have no idea" when the situations make it clear the material you link to is infringing by using your common sense. Fred von Lohman gives the advice to help avoid contributory copyright infringement (specifically concerning embedding videos):"(1) don't embed videos that are obviously infringing, and (2) consider removing embedded videos once you've been notified by a copyright owner that they are infringing.."194 Relevantly, you might have the capacity to secure yourself against claims of contributory copyright infringement by obeying with the notice-and-takedown procedures of the DMCA.195
3.2.2.1 Pearson Education Inc, et al vs Lazar Ishayev The defendant was selling the plaintiff’s instructors’ solutions manuals over the Internet, which claimed to be unauthorised version by the plaintiffs (publishers consist of Pearson Education, Inc., John Wiley & Sons, Inc., Cengage Learning, Inc., and McGraw-Hill Global Education Holdings, LLC. The way he distributed the solutions manual was by sending email to the buyer containing a hyperlink. When the buyer clicks on the hyperlink they will be directed to a website where they can download the material. Problems arise because the website that contains material does not have any rights to upload them, or in the other words the goods are unauthorised copy and infringe the plaintiff’s copyright.196
In terms of hyperlink, the court found that providing the buyer with a hyperlink and directing the customer to use the link, was not reproducing or distributing the work. 197 The court found that qualification significant:
190 Berkman Center for Internet and Society (n40) 191 Berkman Center for Internet and Society (n40) 192 Berkman Center for Internet and Society (n40) 193 Berkman Center for Internet and Society (n40) 194 Berkman Center for Internet and Society (n40) 195 Berkman Center for Internet and Society (n40) 196 Samir Mathur, 'Linking To Copyrighted Material Is Not Necessarily Infringement | Lexology' (Lexology.com, 27 August 2013)
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“As a matter of law, sending an email containing a hyperlink to a site facilitating the sale of a copyrighted work does not itself constitute copyright infringement. A hyperlink (or HTML instructions directing an internet user to a particular website) is the digital equivalent of giving the recipient driving directions to another website on the Internet. A hyperlink does not itself contain any substantive content; in that important sense, a hyperlink differs from a zip file. Because hyperlinks do not themselves contain the copyrighted or protected derivative works, forwarding them does not infringe on any of a copyright owner’s five exclusive rights under § 106..”198
The court characterized hyperlinks as “the digital equivalent of giving the recipient driving directions to another website on the Internet.”199 This kind of remark has been introduced since the past cases, such as in the Universal City Studios, Inc., Et Al., V Shawn C. Reimerdes, et al. case which compares hyperlink similar as a roadway sign.200 Hyperlink also refer as an automated version of a scholarly footnote or bibliographic reference: it let the reader knows where to find the referenced material.201
In this case, the book publisher lost only on a pretrial motion (summary judgment), on the constrained issue that the seller’s insignificant arrangement of a hyperlink did not directly violate one of the fundamental copyright rights.202 Subsequently in the case, at trial, a jury could well finish up from all the proof, together woth the seller’s provisions of the links, that the seller infringed the copyrights by uploading the books to the hyperlinked sites.203
What should be noted in this case, the seller upload the material himself, and not merely provides hyperlink to an existing website which content infringe copyright.
3.2.2.2 Flava Works, Inc vs Gunter Plaintiff Flava Works, Inc. practices production and distribution of adult content videos. myVidster is a website through which clients who have comparative tastes can direct each other toward and give access to online materials by "bookmarking" the materials on myVidster. 204 Flava sued myVidster for contributory copyright infringement, asserting that by giving an association with sites that contain
198 Samir Mathur (n196) 199 Mark Sableman (n125) 200 Mark Sableman (n125) 201 Dan L Bruk (n184) 202 Mark Sableman (n125) 203 Mark Sableman (n125) 204 Loeb and Loeb LLP, 'Flava Works, Inc. V. Gunter' (Loeb.com)
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unlawful duplicates of its copyrighted recordings, myVidster is urging its users to bypass plaintiff’s party's paywall.205
If the users want to get any Flava videos, they must pay a fee in advance. Paying the price likewise, permits the client to download any Flava videos to his personal computer for their own personal non-commercial utilization. Users who downloaded Flava’s videos are actually prohibited to re-upload it, but there are people who still do it. myVidster clients then bookmarked those unapproved Internet duplicates of Flava's copyrighted substance, thus enable the viewer to watch the video through a frame that myVidster provides. However, the video itself is not stored on myVidster’s servers but stream from the original uploader server.206
Similarly to the Perfect 10 case mentioned before, in the Flava Works case, the US Seventh Circuit Court of Appeals refused the liability of websites which frame third party content.207 The defendant website myVidster.com showed the original videos belonging to a third party in the context of its own particular site, despite the fact that the videos were not hosted on the defendant’s site but were merely ‘linked and framed’ from different parts of the Internet.208 It was held that the linking and framing of the videos did not constitute copyright infringement in light of myVidster.com did not host any infringing content or invite infringing links.209 Therefore there is no admissible evidence existed of any direct infringement by myVidster users.210
In this case, the direct infringers are the uploader while myVidster cannot be classified as a direct nor a contributory infringer, at least o Flava’s exclusive rights, communication to the public, which is to copy and distribute the copies of its copyrighted videos.211
205 Loeb and Loeb LLP (n204) 206 Loeb and Loeb LLP (n204) 207 Philipp Plog et al (n177) 20 208 Philipp Plog et al (n177) 20 209 Philipp Plog et al (n177) 20 210 Loeb and Loeb LLP (n204) 211 Jason Goldschmied (n116)
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3.3 Australia Ruling on Hyperlink Cases
3.3.1 Universal Music Australia Pty Ltd vs. Cooper Hyperlinks have likewise been considered under Australian law, for example in Universal Music Australia v Cooper (2005).212 In this case Cooper set up a website (MP3s4FREE.com) which is visited by hundreds and thousands of people. He set up that website with the quite apparent aim of (a) allowing upload of links to MP3s, automatically, and (b) ensuring people could easily search for, and find, mp3 files they wanted. He classified the music based on origin such as Australian, UK, etc.213
The case varied in that the hyperlinks on the Cooper website led to infringing copies of music files, despite the fact that the Cooper website itself did not store any substance.214 The Federal court said that Cooper has violated the exclusive rights of reproduction by copying MP3 files onto his computer.215 However, Cooper’s use of linking did not necessarily resulting a direct infringement of the right of communication to the public.216
All things considered, the Federal Court found that hyperlinks did not constitute a communication to the public from the Cooper site, yet rather the communication originated from the third party websites.217 Because the files were not stored on Cooper’s website nor they passed through the website when being downloaded by a user.218 It can be concluded that Cooper did not make available the infringing files, neither did it take part in the electronic transmission of those files.219
Cooper was found to have authorised the copyright infringement by the Full Federal Court.220 The linking website was liable for authorising copyright infringement, based on a broad understanding of authorising as “countenance, sanction or approve.”221
212 TimeBase, ‘Hyperlinks and Copyright: Svensson v Retriever Sverige‘ (TimeBase, 12May 2014),
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The court noted the comments made by Gibbs J in University of New South Wales v Moorhouse [1975] HCA 26 that:
“a person who has under his control the means by which an infringement of copyright may be committed… and who makes it available to other persons, knowing, or having reason to suspect, that it is likely to be used for the purpose of committing an infringement, and omitting to take reasonable steps to limit its use to legitimate purposes, would authorize any infringement that resulted from its use”.222
The trial Judge found Cooper
"permitted or approved, and thereby authorized, the copyright infringement by internet users who access his website and also by the owners or operators of the remote websites from which the infringing recordings were downloaded."223
The case mentioned above shows how Australian courts are willing to widen the interpretation of ‘communication to the public’ with the perception of authorisation.224
The appeal of this judgment proposed by Cooper was rejected.225
222 Irish Bentley Lawyers, ‘New Australian Copyright Rules A Broken Link for Copyright’,
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CHAPTER IV
HYPERLINK TO UNAUTHORISED CONTENT AND COPYRIGHT INFRINGEMENT
In the previous chapter, the writer has introduced the definition of the hyperlink, the types of the hyperlink, as well as the law on copyright, its exclusive rights and also the criterion of copyright infringement in the three jurisdictions (chapter 2). The case law of copyright infringement related to hyperlinking in the three jurisdictions has as well been addressed in the third chapter.
In this chapter, we will analyse the differentiation and similarity of the judgements regarding hyperlink and copyright in the three different jurisdictions: The European Union, The United States, and Australia. We will compare the approaching method they use, and how those jurisdictions prevent copyright infringement happens in the usage of the hyperlink.
On the previous chapter, we have discussed about several judgments in the three jurisdictions on the case involving copyright infringement through hyperlink usage. In order to make it easier to understand and compare all the cases, it is useful to take a look at the table of the brief summary of the cases which can be found in Annex 1.
4.1 Hyperlink: Direct or Indirect Copyright Infringement
Direct infringement can be interpreted as the person who caused the infringement and is liable for the reproduction, distribution or communication of the copyright protected content to the public, while indirect infringement might be interpreted differently in different jurisdictions.
As discussed in the second chapter of this thesis, the usage of hyperlink mostly does not fall under copyright infringement because it does not infringe the copyright as in harm the exclusive right of the rights holder directly. However, in The United States, they acknowledge indirect copyright infringement which is divided into several types, such as vicarious, contributory and inducement, which result in liability. As well as The US, Australia also recognises indirect infringement; this happens when somebody authorises someone else to actually perform the direct infringement. However, The EU doesn’t have such differentiation and regulation between direct and indirect infringement. This is mainly caused by the principle of copyright law in The EU which is the principle of territoriality. Therefore each Member States may interpret the Directives differently.
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At the EU level, there is no specific provision to define under what conditions a defendant ought to be secondarily liable for copyright infringement, and relevant EU Directives only show that an injunction relief can be issued against intermediaries if their services are utilised by third parties for the infringing purpose.226 The minimum nucleous of secondary liability in EU law could be found in Article 9 and 11 of the Enforcement Directive, which gives an obligation to the Member States to provide for the opportunity of injunctions, including interlocutory injunctions, against ‘intermediaries whose services are used by a third party to infringe an intellectual property right’.227 However, this provision excludes the area of copyright and related rights.228 Regarding copyright and related rights, the EU refers to Infosoc Directive, article 8(3) InfoSoc Directive imposes a balance obligation on the Member States to make sure that rightsholders have the possibility to apply for an injunction against respective intermediaries. 229 Accordingly, the only difference between both instruments is that the InfoSoc Directive does not explicitly provide for the possibility of interlocutory injunctions.230
Although indirect infringements have not been harmonised at The EU level, there are several Member States which apply such regulation for example Netherlands (Unlawfully promoting infringement), Germany (Disturber Liability), and The United Kingdom (Authorisation), etc.231
Looking back to the cases that have been explained in the third chapter, we can differentiate between the actors that involve. There are some different roles here which imply different consequences on the actor. First, there is the owner of the website where the copyrighted material is posted; then there is the maker of the link and the user of the internet who clicks on the link.
The owner of the website where the copyrighted material is posted, if the material is their own work or they have posted it with permission or license from the rightsholder, then they do not infringe copyright. But, if the content was obtained by stealing someone else’s work, or it was posted without the permission of the copyright holder then the owner of the website is a direct infringer by violating the copyright holder’s exclusive right which is the communication to the public.
226 Jie Wang (n95); Directive 2001/29/EC of 22 May 2001 on the Harmonisation of Certain Aspects of Copyright and Related Rights in the Information Society [2001] OJ L 167/10, Art. 8(3); Directive 2004/48/EC of 29 April 2004 on the enforcement of intellectual property rights [2004] OJ L 195/16, Art. 11. 227 Matthias Leistner, ‘Structural Aspects of Secondary (provider) Liability in Europe’, (2014) 9 Journal of Intellectual Property Law & Practice 75-76. 228 Matthias Leistner (n227) 76 229 Matthias Leistner (n227) 76 230 Matthias Leistner (n227) 76 231 Maurice Schellekens, 'A View On How To Proceed With Hyperlinking After GS Media' (Tilburg, 2017).
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The link provider or the maker of the link is another story which will be discussed and analysed further in this chapter. The link provider could share the hyperlink through his website, social media, or some more personal communication such as e-mail and instant messaging. The situation of the link provider is, he does not do any downloading of the copyrighted work, the copyrighted works were not stored in his personal computer nor his system, no copying involved, therefore there is no violation of reproduction rights. In Svensson and BestWater, the judgement shows that there is no violation of communication to the public rights as long as the hyperlink direct to a freely accessible work on the internet, it did not make the work available to the new public, and the work was uploaded under the consent of the copyright holder.
As for the internet users who happen to access the hyperlink to the copyrighted infringing material on the internet, if they download the material then there is a violation of the right of reproduction. But, as for how it has always been, the rightsholder usually never go to each of the internet users who download the material because it will be too burdensome, and the proof in court will be so hard, and it creates more harm than benefit to the rightsholder.
Looking at the Cooper case from Australia, which happens to be the only one case in Australia that has a relation to copyright infringement through hyperlink usage. Cooper's utilisation of hyperlink on his site brought together with his site were held to be an illicit authorisation of copyright-infringing material, in light of the fact that the webpage allowed, not just the posting of infringing duplicates of sound recordings to the website by the administrators of the remote sites, but also additionally allowed the downloading of those recordings by the site clients.232 Illegal authorisation could be fall under indirect infringement. Although Cooper himself did not put the hyperlink but only provide a place for people to share their hyperlink, Cooper was found as did not take enough preventive step to prevent infringement on his website. Therefore, he is liable under indirect infringement.
There are circumstances where hyperlinking or inline linking can raise contributory liability issues. One infringes contributorily by intentionally inducing or encouraging direct infringement in The USA.233
232 Jason Goldschmied (n116) 177 233 http://klarislaw.com/wp-content/uploads/klarislaw-link-liability-eu-us-comparison.pdf
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Looking at the judgment of Pearson Education Inc, et al. vs Lazhar Ishayev et al., although in the judgment stated that there is no copyright infringement, but the Court’s previous Opinion also noted that hyperlinking may lead to “a tenable claim of contributory infringement or vicarious liability.”234
The absence of indirect infringement provision in The EU makes hyperlink could fall under direct infringement after the ruling of GS Media vs Sanoma. When somebody who is considered to place a hyperlink to unauthorised content with knowledge and there is profit gaining intention behind it, a mere hyperlink could be marked as infringing copyright directly. The link provider might then bear the same liability as the actual or direct infringer.
4.2 Hyperlink Allowed or Not Allowed
As we have discussed in the second chapter, a hyperlink is one of the essential components of the World Wide Web. There will be no internet without a hyperlink. Most of the time, hyperlinking is allowed, with no prior permission needed. With the usage of hyperlink, people could also be able to promote their website, as more people coming to their website it will be good for their marketing. The situation makes people favour the usage of the hyperlink, and having other website provides a hyperlink to their website addressed as an advantage. Although, as time goes by, intellectual property right’s infringement may arise from the usage of the hyperlink.
Generally, hyperlink is allowed, but there are times when hyperlinking is not allowed. For example, if the hyperlink bypass a password-protected content or when the hyperlink is directing the user to a website containing copyright-infringing material. Currently, there are also some websites which under their terms and conditions do not allow people to make a hyperlink to their website without obtaining prior permission, and not allowing certain types of linking to be done to their website such as deep linking.
However, the court has denied the usage of this provision in the Ticketmaster Corp and others vs Tickets.com, Ticketmaster contended that defendant's activities violated its web site's Terms and Conditions, which not allowed both deep linking, and the utilisation of the contents of its website for commercial purposes.235 At the beginning of the prosecution, these Terms and Conditions could only be discovered by scrolling to the bottom of the home page of plaintiff's web site. Most of all, these Terms and Conditions were not contained 'above the fold,' and in such a way, a user could view plaintiff's home
234 Jason Goldschmied (n116) 178 235 Martin Samson, 'Ticketmaster Corp. V. Tickets.Com, Inc. - Internet Library Of Law And Court Decisions' (Internetlibrary.com, 2003)
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page, and enter its web site, without being aware of their existence.236 Moreover, in the judgment, the court said that “hyperlinking does not itself involve a violation of the Copyright Act […] since no copying is involved”.
Therefore, in order this provision could prevail, it should be placed where it is noticeable to everyone who accesses that website.
4.2.1 Linking to Copyright-Infringing Material The main difference between the three cases mention in The EU are Svensson and Bestwater provides hyperlink to a legal material (the material is uploaded under the consent of the right holder) while in the GS Media vs Sanoma case, the hyperlink directed the user to a content which infringed somebody’s copyright because it was uploaded without the consent of the relevant right holder.
In the first two cases, it is clear that creating hyperlink to authorised content is not a form of copyright infringement.
Our primary focus in this thesis will be on the hyperlinking towards a website containing content which infringes somebody’s copyright. From the cases and court judgment above as well as mentioned in the previous chapter, hyperlink to infringing material is not regulated the same within the three jurisdictions,
After GS Media vs Sanoma case, the presumption of knowledge is one of the conditions that have to be taken into account especially by websites with a commercial purpose.
The following analysis will be based on The EU - GS Media vs Sanoma case where it is deemed unfair to treat all hyperlink as a communication to the public. With the aim to balance the interest of the right holders, the balance between freedom of expression237 and exclusive rights derived from copyright, the judge decided to differentiate between the innocent link provider and the rest.238 To determine whether the provider of the link is innocent or otherwise, the CJEU introduced the knowledge test. For example, whether the provider of the link knew or ought to have known that the content which has been freely available on the third party website and which he/she links to was published with or without the consent of the relevant rights holder.239
236 Martin Samson (n235) 237 pursuant to Article 11 of the Charter of Fundamental Rights of the European Union 238 Bianca Hanuz (n161) 880. 239 Bianca Hanuz (n161); para 47 GS Media BV v Sanoma Media Netherlands BV and Others [2016] CJEU, C-160/15 EU:C:2016:644 (CJEU).
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On the judgement, the court points out that there are three possible scenarios that could happen regarding this:240
(1) The hyperlink to unauthorised content may not fall within the scope of Article 3 (1) InfoSoc Directive when the posting of hyperlink to a freely available material on another website is performed by someone who does not have any intention to gain profit, to take into account that the particular person does not know and cannot reasonably know, that the work he/she hyperlinks to had been published without the consent of the relevant copyright holder (para 47). In this case, by making that work available to the public, the link provider as a general rule, does not intervene in a full knowledge of the consequences of his/her conduct to give access to work (para 48). (2) Differently, if the person that such a person knew or ought to have known that the hyperlink he posted will direct the reader to a work illegally placed on the internet, for example, that he was notified by the rights holder, then it is necessary to consider that the link enacted ‘communication to the public’ which fall under Article 3 (1) InfoSoc Directive (para 49). (3) Moreover, when the posting of the hyperlink is established to gain profit, it is likely that the person has conducted a necessary research to make sure that the work concerned was not published without the rightsholder consent, the particular nature of the link construct a rebuttable presumption of knowledge from the link provider.
The US court also mention about the knowledge of the link as one of the conditions that should be met, as it is referred to in the Pearson Education Inc, et al vs Lazar Ishayev “The knowledge standard is an objective one; contributory infringement liability is imposed on persons who ‘know or have reason to know’ of the direct infringement.”241 However, The US court never mentions about the profit gaining motives. Therefore, as long as the link provider know or have reason to know that the hyperlink he is about to make will direct someone to infringing material, then the link provider is liable as a contributory infringer.
240 Bianca Hanuz (n161) 241 Pearson Education, Inc, et al v Ishayev et al [2014] New York Southern District Court, 1:11-cv-05052 (New York Southern District Court). at 118 (quoting A&M Records, Inc. v. Napster, Inc., 239 F.3d 1004, 1020 (9th Cir. 2001)) (emphases in original); see also In re: Aimster Copyright Litigation, 334 F.3d 643, 650 (7th Cir. 2003) (“[w]illful blindness is knowledge”), cert. denied, 540 U.S. 1107 (2004).
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4.2.2 Identifying Commercial Purpose The main difference of the judgment in the hyperlink to the copyright-infringing material between The EU, The US and Australia is in the commercial purpose provision. The EU seems to be ahead by considering profit gaining or commercial purpose before omitting that somebody has done a copyright infringement in its latest landmark decision on GS Media vs Sanoma case. In The US and Australia cases, there is no such thing as considering a commercial purpose of a hyperlink.
However, The EU decision about commercial purpose created a further problem on how to determine that a hyperlink constitutes as profit gaining. Looking at the decision after GS Media vs Sanoma case in The EU which has been discussed in the third chapter of this thesis, for example in the Czech case, Czech court has resulted in a broad understanding of what a profit-making intention entails. 242 The court considered any advertisement placed on the defendant’s website as potentially relevant to such assessment.243
It is important to differentiate between the one who posts the hyperlink in order to gain commercial profit from the hyperlink and the one who posted the hyperlink on their website which website's, for example, have (Google) Adsense attached to it, so they are gaining profit from the website itself through advertisement. Another way is also if they gain profit from someone who sponsored the post, for example, some well-established blogger may provide content replacement or advertising a service or product on their website, and some content might be provided by the sponsor themselves. What if the content, the hyperlink to certain things provided by the sponsor infringe somebody’s copyright material, things will become even more complicated in this situation.
In the Australia’s Cooper case, the display of the Com-Cen logo on the home page in exchange for free hosting services was considered as a sign that there was a real financial reason for acquainting themselves with the activities of the website.244 Although profit making is not a condition to be met in Australia, it is one of the considerations of the judge in court.
4.2.3 Knowledge of the Author about the Legality Knowledge of the author before he posted any hyperlink to any website is a condition to be met in all the jurisdictions as mentioned above. In The EU it was mentioned that the author must not know or cannot reasonably know if the website he/she was hyperlink to was containing copyright infringing material. In
242 Juraj Vivoda (n172) 1 243 Juraj Vivoda (n172) 1 244 Jason Goldschmied (n116) 177
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The US, and Australia, in order to be liable for indirect infringement, the author should also be fully aware that his conduct is authorising a direct copyright infringement.
Quoting from the court ruling for GS Media vs Sanoma Case:
“when the posting of hyperlinks is carried out for profit, it can be expected that the person who posted such a link carries out the necessary checks to ensure that the work concerned is not illegally published on the website to which those hyperlinks lead, so that it must be presumed that that posting has occurred with the full knowledge of the protected nature of that work and the possible lack of consent to publication on the internet by the copyright holder. In such circumstances, and in so far as that rebuttable presumption is not rebutted, the act of posting a hyperlink to work which was illegally placed on the internet constitutes a ‘communication to the public’ within the meaning of Article 3(1) of Directive 2001/29” (paragraph 51)
The CJEU, although did not mention it explicitly in the judgment of GS Media vs Sanoma, implying that there is a duty of search/duty to investigate for the link provider before he posted any link, this applies for those link provider who has the intention to gain profit. The link provider should be expected to have conducted a research whether the website he is about to link to contain a legal or illegal material.
This is as well related to the commercial purpose of the website. Because the court implicitly indicating if the website has a commercial purpose and any post including hyperlink in the website is established for profit, then it supposes to have enough resources to conduct research whether the hyperlink that it is about to post will lead to unauthorised content or not. This creates further problems since there is no limitation on how much profit could be categorised as sufficient enough to make the link provider fall under the obligation of duty of search, this makes everyone could fall under this category.
The duty of search itself also not clear, how to prove that somebody has done enough investigation before posting a hyperlink, and what kind of investigation should be done prior to posting a hyperlink and how it could be determined as sufficient.
Schellekens, in his presentation during the TILTing Perspectives conference 2017 mentioned some possibilities about a sufficiency in conducting duty of search of a link provider, such as (1) the link provider only deal with reputable websites; (2) the link provider checked with the website to which he links, and they reassured him; (3) the link provider tried to locate the rightsholder, but he was not findable.245
245 Maurice Schellekens (n231)
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It is still a big question mark whether one of them is actually could be considered good enough.
Although in all three jurisdictions the knowledge is one of the conditions that should be met, but only in The EU there is something such as the “duty of search”.
4.2.3.1 Common Sense Before posting a hyperlink to a website, to determine whether the content is illegal or not, first, can be done by using one’s common sense.
Looking back to the GS Media case, before creating a hyperlink, in order to minimise the risk that he ends up linking to a website which content is infringing copyright material, someone should be able to see if there is any peculiarity. For example in GS Media case, the pictures are taken for the upcoming edition of Playboy magazine, a well-established magazine. There is less likely they want to put the exclusive picture up on the internet before the magazine is actually published, if there is some preview for marketing purpose, they will not reveal all, and it will not be the pictures alone but preview from other rubrics as well along with advertorial wordings.
Furthermore, they may not publish the whole things on the internet even after the edition has been published. That will definitely make them losing profit because people may no longer want to purchase the magazine since they already able to see what is inside, or they could just be patient and wait a little bit longer for the edition to be published online. Moreover, the leaked pictures were not placed on the official website of the said magazine. If it is for preview and promotional purpose, the preview should be on the official website of the magazine, and maybe if they choose to promote it other than through their website, it must be in some well-known and well-established website, not in the middle of nowhere on the internet jungle.
4.2.3.2 Notification Notification was one of the considerations in the judgment of GS Media vs Sanoma case, as Sanoma has given notification prior to its lawsuit to the websites that put their copyrighted, protected material without consent. All the other websites, the original site of where GS Media direct their hyperlink to, was already comply with the notification and immediately take down the content from their website, while GS Media ignore the notification.
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Notification is the most obvious way to tell if there has been a copyright infringement because notification comes directly from the relevant copyright holder. In The US it is known as “DMCA take down”246, in The EU as “Notice and take down”247 and in Australia as “take down notice”248. A takedown notice is a notice delivered by a copyright holder, or nominated agent acting on their behalf, giving notification to an individual or an organisation of an accusation of copyright infringement under the "safe harbour provisions".249
Nonetheless, this notification scheme usually is used in case of direct infringement, where the copyright holder asks the infringer to take down their copyrighted material on the infringer website. Apparently, the GS Media case has introduced a new form of notification and take down scheme, which is the notification to delete the hyperlink that directing people to another website where the infringing material is placed.
In The US, the DMCA takedown notifications that target hyperlinks leading to copyright-infringing material is already known, but it is usually received by the online service providers where they face with the option to remove or not to remove the hyperlink.250 But, of course, this is different than the link provider itself because the online service provider is protected under the safe harbour principle.
4.2.3.3 Quality of the Creator of the Hyperlink And to determine whether the creator of the link is as a matter of fact having a commercial purpose behind their post can be seen from the quality of the creator of the hyperlink. Back to GS Media case, geenstijl.nl is a controversial website, it is reasonable to be expected that by posting some controversial posts they want to gain reader and gathering profit from them. But, for example, the hyperlink to the infringing material was found on a random unknown website, which does not have many readers and was not posted under click-bait title, most likely the link provider does not have any commercial purpose and no idea about the legality of the content he is linking to.
246 Section 512(c) DMCA 247 Article 14 E-Commerce Directive 248 Schedule 10 of The Copyright Regulation 1969 249 http://copyright.unimelb.edu.au/information/what-is-copyright/takedown-notices accessed 26 April 2017 250 Steve, 'Hyperlinks, Copyright Infringement, And The DMCA' (Clicky Steve, 2015)
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4.2.3.5 Linking Agreement Another way to avoid being liable for copyright infringement through the usage of hyperlinking is by making a linking agreement before making any hyperlink on one’s website.
The idea behind a linking agreement, like all permission agreements, is to avoid a dispute. People have been using hyperlink every now and then and most of the time links do not create legal issues, and if the owner of the web is assured that a link will not raise a dispute, then a linking agreement is probably not crucial.251
However, there are some types of links which may create disputes:252
image links, particularly when the image is the trademark of the linked site
Frame linking, and
inlining links that only pull specific elements from a site, for example, an image.
The permission doesn’t have to be in formal form, a short written statement as long as it is understanding from both parties will do. A longer agreement that covers the terms more specifically will not be a problem as well.253
Although the purpose of linking agreement in the first place is not to infringe the actual copyright holder's exclusive right, the linking agreement could also be used to determine the level of trustworthiness of the website, to make sure that whatever they post on the website is legal or authorised. This might also be a sign that the link provider has done a duty of search or preventive step before putting a hyperlink on his website.
However, if someone has to make a linking agreement before he provides any hyperlink on his website, it will create a significant burden on the link provider, and this will discourage people from making any hyperlink.
4.3 Copyright Infringement in Other Form of Linking
From some of the judgments, we could see that there are different types of hyperlinking that might be infringed somebody’s copyright. These types of linking are already mentioned and explained in the second
251 Rich Stim (n48) 252 Rich Stim (n48) 253 Rich Stim (n48)
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chapter, in this chapter we will take a look and compare how the three jurisdictions different behave towards these types of linking.
4.3.1 Inline Linking In Perfect 10 v Google case (see chapter 3 or Annex 1 for more detail), inline linking was treated as a form of hyperlinking. From this case decision we could see that the link provider is protected from direct copyright infringement in the traditional sense, when the Ninth Circuit stated that the HTML instructions was not equivalent to showing a copy, therefore it was not considered as copyright infringement, because the website where they put the hyperlink did not store nor display the material but merely providing the HTML.
4.3.2 Framing BestWater International GmbH v Michael Mebes and Stefan Potsch case (see chapter 3 or Annex 1 for more detail) is one of the examples of framing case in The EU. Framing could be a problem because the user might not know that they have been redirecting to another website to see something. However, in this case, framing did not consider as copyright infringement as long as it did not make the content available to the new public.
Leslie A Kelly v Arriba Soft Corporation case (see chapter 3 or Annex 1 for more detail), The US decision, in this case, held that embedding or framing of images from another site on a Linking Site disregarded the exclusive right of the right holder to demonstrate its works to the public.
Framing without permission is most likely a violation of copyright law, trademark law and a variety of other legal codes.254
4.3.3 Deep Linking One of the most popular copyright infringement through the use of hyperlink might be happening on deep linking sphere. As mentioned in the second chapter, deep linking is a type of hyperlink where the user directed to a certain page of another website instead of its homepage. A lot of website owner oppose this kind of linking because they usually put advertising on their homepage. Therefore they might lose profit when people are directed to a particular page in their website instead of their homepage. However, in The US, The US District Judge Harry Hupp in the Ticketmaster Corp, and others v Tickets.com, Inc decision stated that "Hyperlinking does not itself involve a violation of the Copyright Act. There is no deception in
254 Jonathan Bailey (n42)
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what is happening. This is analogous to using a library's card index to get a reference to particular items, albeit faster and more efficiently."255 Moreover, copyright is meant to protect intellectual property and not for promoting advertising.
This argument might not be entirely accurate because library card index does not have any profit-making orientation. And although there is no deception, there is an appropriation to use other’s data for their own benefit without prior consent.
4.4 Communication to The New Public
The biggest differentiation between the CJEU reasoning in its judgments and what the US court and Australia court use in their judgments, for cases on copyright infringement in the usage of hyperlinks are not only about the presumption of knowledge that applies to commercial websites. The other important element is the action of communicating to new public; this is a particular criterion which is only found in The EU cases. The fundamental of judgment in The EU cases to determine whether there is copyright infringement or not lies within this provision.
New public is defined as the public that is not the initial target when the content is published. New public could also be mean to those people who could access a paid material without paying because somebody facilitates a trespassing through hyperlink.
As long as the hyperlink did not communicate to new public, there is no copyright infringement.
4.5 Discussion
After all the explanation from the previous chapters, that is something unique which differentiate between The EU which adopts civil law system and The US and Australia which adopt common law system. Where in the common law system (The US and Australia), there is secondary liability for indirect infringement where hyperlinking to unauthorised material fall into this provision.
In The EU, all infringement fall into direct infringement without differentiation. However, the separation of direct and indirect infringement is pretty much essential, because the fact is they are different, this can be seen from the actual conduct of what the infringer does. The US system is more favourable in this term by classifying into three kinds of infringement liability, which are the vicarious, contributory and
255 Robin Fields and P.J. Huffstutter, 'Judge Rules Online Firms May Link to Rival Web Sites' Los Angeles Times (2000)
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inducement. This will widen the scope of liability which is in favour for the rightsholder, and it gives more legal certainty, where any kind of action resulting in infringement should be liable.
The most important difference between direct and indirect infringement is that for indirect infringement, the rightsholder needs to prove more. Indirect infringement is often more tort-like where the rightsholder has to adduce circumstances why it is tortious, while direct infringement is an infringement on a subjective right, which generally is easier to prove because the rightsholder establishes that the act of the defendant infringed his right and he is done. So, by differentiating between direct and indirect infringement, it will affect the weight of the burden of proof on the rightsholder and the harder it is to prove, the less likely the court will decide that there is indeed an infringement of copyright. If the possibility of winning in court is small, the rightsholder might reconsider before bringing such case to court unless they are absolutely convinced and have all the proof needed, by putting hyperlink as an indirect infringement, this might reduce the fear in the society of infringing copyright just by merely create a hyperlink.
On top of that, there is something more important than differentiation between direct and indirect infringement, which is the liability itself. It does not necessarily mean that the direct infringer should bear higher liability than the indirect infringer, the one who should bear more liability is the one who got higher profit from the infringing conduct. If the question is whether differentiation between direct and indirect infringement important or not, yes it is important, but it is not the most important, moreover it does not necessarily mean the direct infringer should be liable more than the indirect infringer. Both of them are liable, and what differentiates the magnitude of how far they should be liable is how much they profit from the infringement. If the direct infringer gains more profit from the infringement, they should bear more liability. At the end of the day, whether it is direct or indirect, it is still an infringement after all.
The EU is the only jurisdiction which put the knowledge of the link provider and profit making intention or commercial purpose as a condition that should be fulfilled before accusing someone who creates a hyperlink as a copyright infringer. In both The US and Australia, knowledge is also a condition, while the commercial purpose is not. However, in Australia’s case profit gaining is mentioned in the judgment. In the writer opinion, the condition that The EU apply for commercial purpose is a bit unclear. It is okay to put such condition as long as there is an apparent limitation on what they mean by commercial purpose and profit making and a clear way to determine whether the link provider has conducted sufficient duty of search or not prior to posting the hyperlink. Moreover, automatically consider that every website that has commercial purpose certainly have the resource to do the prior duty of search is also a bit too far and seems unfair.
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Profit making should not be a condition to determine if there is an infringement or not, especially when the circumstances are not clear enough because this will create a problem, hinder the freedom of expression and make people afraid to put hyperlink whereas hyperlink is one of the pillars of the internet. Maybe The EU could see how the Australia’s rule on this, where profit making is not the condition to determine whether it is a copyright infringement or not but still it is being considered, especially to determine how much the link provider should be liable for the infringement itself. How big is the profit he makes by posting the hyperlink?
The commercial purpose provision creates some legal uncertainties in The EU, and it also creates a new duty for the link provider which is the duty of search. If a mere hyperlinking is that hard, many steps to be taken beforehand, and have a high chance to infringe copyright with a difficult burden of proof, people might choose not to make hyperlinking after all.
In the writer opinion, a hyperlink to unauthorised content should be analysed in a case by case basis, what important to determine is if the link provider or the one who posted hyperlink has a good intention or bad intention on posting the hyperlink. If they have good intention and do not have a bad intention which is infringing and/or making profit from the infringement; for example, when the rightsholder sends them a notification they will take it down right away and maybe send an apology if requested from the rightsholder before going to the court, this can be a sign that the link provider has a good intention. Unlike in GS Media case for example, where GS Media did not comply with the notification sent by Sanoma, and instead of taking the hyperlink down, it put a new hyperlink to another source that uploaded the unauthorised pictures. In this case, we can see that GS Media does not have good intention from the beginning of posting the hyperlink.
Having a website that has a commercial purpose does not necessarily means it also has a bad intention when posting hyperlink and also does not mean they have enough resource to conduct research every time they are about to post a hyperlink.
4.6 Conclusion
In most of the judgment of the case, hyperlinking is allowed, it is considered as a freedom of expression, and the doctrine of fair use could prevail. In some cases, hyperlinking to the unauthorised material can be an infringement of someone’s copyright, but this does not necessarily apply to all when there is a case the court should examine case by case. Moreover, if the source website is already taken down, the hyperlink posted will not direct anybody to the copyright infringing material after all.
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CHAPTER V
CONCLUDING REMARK
This chapter comprises conclusions and recommendations. The conclusions are to answer the first two- research-questions (1) What kind of actions related to hyperlink could be determined as copyright infringement?; (2) How does a hyperlink could be determined as copyright infringement in The EU, US and Australia?, while the recommendations are to answer the third research question (3) What kind of prevention should be done by people before they post a hyperlink to avoid infringing someone’s copyright?
5.1 Conclusion
Hyperlink is an essential part of the web. Hyperlink connects pieces of information together, and the internet is less likely to function without them. There are a lot of types of hyperlink in the World Wide Web; a standard hyperlink is called normal link usually normal link does not create any problem. A surface linking where it directs the user to the homepage of another website is more favourable than a deep linking, where the Internet user is directed to certain elements of the website, not the home page. Deep linking may infringe copyright. Another type of linking that may infringe copyrights are in-line linking and framing. In The EU and The US, there are cases about those type of linking, but nothing has ever pronounced infringing copyright, while in Australia there is no lawsuit on those types of linking yet and most likely those types of linking will not infringe copyright.
In The EU, a hyperlink could be determined as copyright infringement when it opens up the content which was uploaded with permission of the rightsholder to new public. After GS Media ruling, hyperlinking is also a copyright infringement if the link provider knows or most likely to know that the content in the website it directs to containing materials uploaded without permission of the owner and he has a commercial purpose. Since, The EU did not differentiate between direct and indirect infringement, the result is when somebody is convicted of copyright infringement through hyperlink, it will still be considered as a direct infringement.
In The US, there are several cases related to copyright infringement by the usage of hyperlink. Since the copyright infringement through hyperlink did not infringe the exclusive rights directly, it falls under secondary liability or indirect infringement, in the form of contributory or inducement. Most of the cases
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were not convicted of copyright infringement because there is also the doctrine of fair use and also freedom of expression.
In Australia, there are not many cases involving hyperlink. There is only one case up until now. The case at first was not considered as an infringement of copyright because the link provider was merely providing the hyperlink, but in the end, it was pronounced infringing copyright indirectly by providing authorisation for the actual copyright.
In all jurisdictions, if the link provider has knowledge of what they are linking to is uploaded without permission of the rightsholder then it can be classified as copyright infringement. In The EU it is direct infringement, while in Australia it is indirect infringement and in The US it is also indirect infringement in the form of contributory infringement.
The most important difference between direct and indirect infringement is that for indirect infringement, the rightsholder needs to prove more. Indirect infringement is often more tort-like where the rightsholder has to adduce circumstances why it is tortious, while direct infringement is an infringement on a subjective right, which generally is easier to prove because the rightsholder establishes that the act of the defendant infringed his right and he is done.
In the writer opinion, The US judgments seem to be more appropriate in this case of hyperlink to unauthorised material. The EU decision is a bit too far and create more problems and confusion in the society. The writer only agrees that the link provider could be guilty of copyright infringement when they ignore the notification from the rightsholder because that implies that they do not have good intention when posting the hyperlink.
5.2 Suggestions
Before somebody post a hyperlink and knowing that the website it directs to contain an unauthorised content he should not continue with it, because if he has prior knowledge about that, then he might be liable for copyright infringement. In order to avoid being liable for copyright infringement through hyperlink, one should conduct duty of search at least using his/her common sense If a copyright holder gives you notification that your hyperlink directs to a content infringing their exclusive rights, you should immediately take down that hyperlink from your website.
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Annex I
TABLE OF THE CASES' SUMMARY
Jurisdiction Summary of The Case Judgement Conclusion The Svensson and Others vs The court decided that the CJEU found that European Retriever Sverige AB (C- posted links not grasp a “new the provision of Union 466/12) - Retriever Sverige public” inside the importance of clickable links to provided hyperlinks to articles Sec. 3 (1) of the Directive copyright on the Göteborgs-Posten 2001/29/EC since the content is protected works website without the already freely available to all must be authorisation of their internet users on the original considered to respective authors. website (the newspaper website). be an act of Therefore there is no copyright communication. infringement. However, to The CJEU defined the concept of determine “communication to the public” whether there is including two criteria which a new should be achieved cumulatively, communication namely, (1) an act of to the public it communication of a work and the requires that communication of that work to the protected (2) a public content be communicated by either different technical means than the initial communication, or is directed at a new public - a public that was not considered
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by the copyright holder when he authorised the initial communication BestWater International In this judgment, CJEU in Framing is not a GmbH v Michael Mebes and dependence on existing case law copyright Stefan Potsch (C-348/13) – in expected that to establish a infringement if the two defendants make a new communication to the public the material is video available on their according to Article 3(1) Infosoc- already website through framing Directive 2001/29/EC the available to copyright-protected work must general public. have been publicised by technical means, which either contrast from the technical means with which the underlying communication was carried out, or communicated to a new public, for example, a public that was not thought-about by the copyright holders when they authorised the initial communication to the public.256 GS Media v Sanoma Media The CJEU confirmed that for the Hyperlink to Netherlands and Others (C- application of Article 3(1) of copyright- 160/15) – GS Media through Directive 2001/29/EC, two infringing its website geenstijl.nl put a cumulative elements are material is not link to another website where necessary to be fulfilled: first is an categorised as the user could download ‘act of communication’ and copyright pictures for upcoming PlayBoy second is ‘a public’. In this infringement if
256 Benjamin Schuetze (n150)
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magazine that were put judgement it held that so as to done within two without the consent of evaluate whether a website link conditions: (1) Sanoma as the rightsholder. to a work set online without the the link provider Sanoma then sent notification consent of the rights holder is a does not know to the main website and also communication to the public, it or cannot GS Media to take down the should first be resolved whether reasonably pictures. The main website the links are given other than for know that the complied, but GS Media financial gain by somebody who material he is didn’t, it even put another did not know, and could not hyperlinking to hyperlink to another website sensibly have known, that the was uploaded which uploaded the same linked-to publication was without the pictures. unauthorised consent of the relevant rightholder; and (2) it was not done to gain profit The United Ticketmaster Corp, and others the Court held that in the Deep linking did States v Tickets.com, Inc, - circumstances of this case, deep not violate US Tickets.com providing a deep linking from Tickets.com's web copyright law link which bypass the site to interior pages of plaintiff's because no homepage of Ticketmaster site was not copyright direct copying is website infringement, as there was no involved if the showing or display thereby of link refers the plaintiff's copyrighted works. As user to the noted above, these deep links “genuine were preceded by a notice article”. advising the user that the link would take him to another's site, which site, in turn, was clearly
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labelled as belonging to plaintiff.257 Leslie A Kelly v Arriba Soft The Ninth Circuit Court of Appeal The US decision, Corporation – Arriba places affirmed that The creation and in this case, held thumbnails of Kelly’s pictures use of the thumbnails in the that embedding in the authorised website as search engine was a fair use. or framing of their search engine result However, it held that the District images from Court should not have decided another site on whether the display of the larger a Linking Site image was a violation of Kelly’s disregarded the exclusive right to publicly display exclusive right his works.258 of the right holder to demonstrate its works to the public Perfect 10 v Google – Google Google did not display nor store In-line linking shows Perfect 10 picture in its the picture; it just provides the does not search result in thumbnail size HTML. The Ninth Circuit infringe explained that providing the copyright HTML instructions was not equivalent to showing a copy. Moreover, it constitutes fair use of copyrighted material. Therefore, there is no copyright infringement. Pearson Education Inc, et al. “As a matter of law, sending an hyperlink to vs Lazar Ishayev - The email containing a hyperlink to a copyright- defendant was selling site facilitating the sale of a infringing solutions manual for copyrighted work does not itself materials did
257 http://www.internetlibrary.com/cases/lib_case393.cfm accessed 28 April 2017 258 http://fairuse.stanford.edu/case/kelly-v-arriba-soft-corp/ accessed 27 April 2017
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textbooks, the way he constitute copyright not itself distributed the instruction infringement. A hyperlink (or constitute manual was by sending email HTML instructions directing an infringement to the buyer containing a internet user to a particular especially in this hyperlink, and when the buyer website) is the digital equivalent case the seller clicks on the hyperlink they of giving the recipient driving uploads the will be directed to a website directions to another website on material himself where they can download the the Internet. A hyperlink does not and not merely material itself contain any substantive provides a content; in that important sense, hyperlink to an a hyperlink differs from a zip file. existing website Because hyperlinks do not which content themselves contain the infringes copyrighted or protected copyright. derivative works, forwarding them does not infringe on any of a copyright owner’s five exclusive rights under § 106..”259 Flava Works, Inc vs Gunter – The US Seventh Circuit Court of The linking and Some users of Flava Appeals refused the liability of framing of the downloaded then re-upload websites which frame third party videos did not some copyrighted and only content.260 The defendant constitute available to paying member website myVidster.com showed copyright videos, myVidster clients then the original videos belonging to a infringement in bookmarked those third party in the context of its light of unapproved Internet own particular site, despite the myVidster.com duplicates of Flava's fact that the videos were not did not host any copyrighted substance, thus hosted on the defendant’s site infringing enable the viewer to watch but were simply ‘linked and content or
259 Samir Mathur (n196) 260Philipp Plog et al (n177)
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the video through a frame framed’ from different parts of invite infringing that myVidster provide. the Internet.261 links However, the video itself is not stored on myVidster’s servers but stream from the original uploader server Australia Universal Music Australia Pty Federal Court of Australia held Authorizing Ltd vs Cooper - Cooper set up that the simple existence of someone to a a website (MP3s4FREE.com) hypertext links to illegal MP3 files direct copyright which is visited by hundreds on Cooper’s website was not infringement is and thousands of people, itself a direct infringement of a copyright when an Internet client got to Copyright, but did amount to infringement these hyperlinks, the outcome authorising copyright itself in an was the automatic download infringement, namely the posting indirect form. of documents put away in the of infringing copies of music area recognized by the URL recordings by the operators of from remote sites to that the remote websites, and the client's PC. downloading of those recordings by internet users.
261 Philipp Plog et al (n177)
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