Does Hyperlinking Create Liability for Copyright Infringement in Canada or the European Union?

Hyperlink, by SumAll, on Flickr.

Hyperlink, by SumAll, on Flickr.

This peer-reviewed article in the European Intellectual Property Review provides a timely comparative analysis of recent Canadian and European Union (EU) copyright cases regarding the nature and scope of communication rights, as applied to the issue of copyright infringement liability for hyperlinking.

Mira Burri and I link possible copyright infringement for hyperlinking with the pertinent international law, in particular with the WIPO Copyright Treaty (WCT) and the WIPO Performances and Phonograms Treaty (WPPT), together known as the WIPO Internet Treaties.

Digital technologies, online communication, and electronic commerce have destabilized the traditional global copyright system. The WIPO Internet Treaties and subsequent domestic legal implementations have been the response to this, and our article takes a comparative analysis of judicial interpretation of domestic legislation in two regions.

The specific focus is the European and Canadian practices of “making available” as a mode of communication to the public, particularly via hyperlinking. Our comparative findings suggest that preserving flexibility for courts to interpret domestic laws according to socio-economic conditions, technological developments, and local priorities is desirable. We argue that hyperlinking does not, and ought not, create copyright liability for infringement of the communication right.

Making Available Via Hyperlinks by jeremydebeer

The WIPO Internet Treaties ambitiously aimed to modernize global copyright law and make it fit for the internet age. Unfortunately, there was little or no understanding of the fundamental ways in which digital technologies have changed the conventional modes of creating, distributing, accessing, using and re-using cultural content and knowledge. As a result, the treaties have fallen short of their mission.

Under the new treaties, copyright has expanded to include “making available.” It is found in the WIPO Copyright Treaty under Article 8: Right of Communication to the Public and Article 6: Right of Distribution. Under the WPPT, the Right of Making Available of Fixed Performances/Phonograms is found in Article 10/14.

This means that signatories may protect making available in some instances through the distribution right, in others through the communication right, or through a combination of existing or sui generis rights. It is important simply that countries protect making available, not how specifically they do it.

The European Union (EU) and Canada have taken different approaches to the domestic protection of this right. Via the Information Society Directive, the EU grants authors the exclusive right to communicate or make their work available for reproduction. Canada also amended its laws, yet the jurisprudence suggests that there is a difference between making available for communication and making available for reproduction/distribution. This demonstrates the central thesis of the article: interpreting treaty provisions alone is insufficient to understand their practical impact across jurisdictions.

Major developments took place in Canadian copyright law in 2012. There was a quintet of Supreme Court decisions that set the tone for the interpretation of the amendments to the Copyright Act that took place in November 2012. The amendments include a definition of “communication to the public by telecommunication.” These developments could have profound implications on a variety of legal and economic issues, which our article explores.

While the law continues to unfold in Canadian courts, the Court of Justice of the European Union (CJEU) has heard many cases that have addressed the issue of ‘making available.’ Until very recently, there was little clarity, as the rulings have rendered disparate results; some have classified hyperlinking as communication, while others have not.

Despite the ambiguity, it appears that several elements must be present in order to establish a ‘communication to the public.’ First, there must be a ‘transmission’ of some kind. Second, the service must be an additional service aiming at some profit and not caught merely by coincidence by the users. Third, there must also be a “new public,” meaning that the transmission is made to a different public than that which the original publication was directed at.

Some clarity has been recently provided by the CJEU. The key question of a landmark case, Svensson, was whether putting a hyperlink on a website constitutes a “communication to the public.” The Court decided it did not, on the basis that links to publicly available material do not communicate content to a new public, not intended or anticipated by original posting. This is a sensible and welcomed decision, entirely consistent with the arguments made in our article.

To conclude, our transatlantic comparative analysis shows that creativity increasingly requires flexible systems that embrace the new modes of peer production that characterize the networked information economy. Our article praises the flexibilities and freedoms in the WIPO Internet Treaties because they enable legal institutions like the Supreme Court of Canada and the CJEU to derive technologically neutral and context appropriate responses to opportunities for new kinds of commerce and creative expression.

Our research was initially released pre-publication working paper, described as:

a useful comparative analysis of developments in the EU and Canada on the highly contentious issue of hyperlinking and copyright liability.

– World Trade Institute, Berne Switzerland

Funding for this research was provided by the WTI.