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A Comparative Analysis of Hyperlink to a Copyright-Infringing Material in the EU, the US and Australia

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A Comparative Analysis of Hyperlink to a Copyright-Infringing Material in the EU, the US and Australia 1 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 1 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 2 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) <https://www.claytonutz.com/knowledge/2014/april/to-link-or-not-to-link-the-legal-risks-of-linking> accessed 22 November 2016 4 Pessi Honkasalo, ‘Links and Copyright Law’, (2011) Computer Law and Security Review, 258 <http://www.sciencedirect.com/science/article/pii/S0267364911000616> accessed 23 November 2016 5 Imrie Stuart and Lora Shaw, ‘Hyperlinks: helpful cross-reference or breach of copyright?’,(HWLEbsworth Lawyers, 11 April 2014) http://www.hwlebsworth.com.au/latest-news-a-publications/publications/government/australian- government/item/1296-hyperlinks-helpful-cross-reference-or-breach-of-copyright.html, accessed 24 November 2014 6 Maureen A O’Rourke (n1) 7 Nail James and Thomas Middleton (n3) 2 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
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