“Link Collection Site”

• 1. The act of linking to content, including audiovisual works infringing the right of communication to the public or to webpages on which such content is located, does not constitute such an infringement, on the grounds that the requirements for making available stipulated in the relevant provisions are not met. This was an established precedent of the Supreme Court.

  Links only contain the location information and routes for connecting to the content or webpages that store the (third-party’s) materials, including various kinds of audiovisual works. When internet users directly connect to the content that infringes the copyright by clicking on the links in question, the perpetrator is not the person who creates the links, but the one who uploads the contents to the internet servers. Links should be treated as a request to retrieve a certain content, a preparatory measure to do so or a route thereto. The act of creating links does not make the copyrighted works available. Thus, the precedent holding that such links do not constitute copyright infringement should be followed.

• 2. The Supreme Court’s precedent on the liability for aiding the communication to the public follows the legal doctrine that creating links on the internet does not constitute copyright infringement on the grounds that “such an act may not be seen as aiding the commission of an act infringing the right of communication to the public.” This is true in cases where the links merely directly connect the content infringing the copyright holders' right of communication to the internet users.

  Links are said to have a unique social meaning and function to promote the free diffusion of information and realise freedom of expression on the internet. If creating links is to be treated as a wrongful act, it would result in imposing liability for aiding the infringement of the right of communication without cautious consideration, and excessively disturb the realisation of freedom of expression and the general freedom of action.

  However, the precedent that says that creating links is not to be seen as an act of aiding the infringement of the right of communication to the public should be re-examined when considering the general legal principles on liability for aiding the predicate offence. This is a different issue from the fundamental standpoint that such a liability should not be commonly established where links on the internet are at issue.

• 3. When the principal offender has uploaded to the internet content that infringes copyright in a manner that members of the public may access it at any time and place, such act in itself already gives rise to criminal liability. It does not depend on the actual transmission of the infringing content to the public. In this circumstance, if the principal offender does not remove the content from the servers or prevent others from accessing it, the commission of the crime, that is, the making available of illegal content, continues. If such an infringing act is still in progress, aiding such a predicate offence is punishable.

• 4. Where, despite sufficient knowledge of the fact that the principal offender infringes the right of communication to the public, someone who creates links to the content infringing copyright undertakes such acts continuously and for profit to allow members of the public to have easier access to it or the webpages containing it, such as an operator who provides a multitude of links to connect to such content, is said to aid the criminal act. This leads to liability for aiding. Creating links is closely related to the act of the principal offender to make content infringing copyright available to the public before the crime committed by the principal offender ends, which also expands the possibility of fulfilling the requirements for the predicate offence and realising the results it causes. In doing so, such a person is held to have facilitated the commission of the principal offender’s criminal act prejudicing the rights recognised by law for a longer time and on a larger scale. In such cases, both the principal offender and the aider intentionally commit the act.

• 5. Where creating links, e.g. providing a multitude of links to audiovisual content infringing copyright, does matter, the liability of the aider may lie with the party committing such an act, that is, creating links that seem, in consideration of the actor’s intention and their forms, closely related to the infringement of the right of communication to the public. In this circumstance, the unique social significance of internet links to enable the circulation and diffusion of information cannot justify such an act. However, in cases where a person who creates links does not have sufficient knowledge of the fact that such materials are illegal, their guilt as an aider does not constitute a criminal act. The same is true in cases where providing links to content that infringes copyright is not continuous and for profit. Thus, the intention of the aider or the causality between the principal offender’s crime and the aider’s aiding act may be denied, or can be socially tolerated from the perspective of the entire legal order.