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Linking on the Internet and Copyright Liability: A Clarion Call for Doctrinal Clarity and Legal Certainty

Abstract

Prompted by the decisions of the CJEU in Svensson and GS Media, this paper attempts to unmask the potential copyright liability of an internet user who engages in hyperlinking, framing and/or inline linking from a principled and conceptually coherent perspective. The overall discourse in this paper will be guided by the following two questions:

  1. 1.

    Do these forms of online activity constitute acts of communication (or making available) in the first instance?

  2. 2.

    Should they fall within the purview of Art. 3(1) of the EU Information Society Directive and be subject to potential primary/direct liability (as opposed to accessory/indirect liability)?

It is hoped that this paper will offer a rational view of the ongoing debate (and provide sensible answers to these questions) by drawing on the established jurisprudence of the courts in Europe, the UK and elsewhere, as well as by having regard to the various interpretations of the concept of “publication” in the law of defamation (in particular, Canadian law).

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Notes

  1. 1.

    Strowel and Hanley (2009), p. 72. For the avoidance of doubt, this paper is not concerned with links that are themselves infringing in nature – e.g. links that contain a set of words that are collectively protected by copyright (e.g. news headlines in Shetland Times Ltd v Dr Jonathan Wills [1997] FSR p. 604) or links that are represented by a clickable “thumbnail” image which is protected by copyright (see, e.g., Kelly v Arriba Soft Corp 77 F. Supp.2d p. 1116 (CD Cal 1999)).

  2. 2.

    Strowel and Ide (2001), p. 403 at p. 404. See also Collins (2010) at [5.42]: “Hyperlinks are the synapses connecting different parts of the world wide web. Without hyperlinks, the web would be like a library without a catalogue: full of information, but with no sure means of finding it”.

  3. 3.

    Strowel and Ide (2001), p. 403 at pp. 407–408.

  4. 4.

    Strowel and Hanley (2009), p. 73.

  5. 5.

    Strowel and Ide (2001), p. 403 at p. 408.

  6. 6.

    Ibid. See also Society of Composers, Authors and Music Publishers of Canada v Canadian Assn of Internet Providers [2004] 2 SCR 427 at [25]; Kelly v Arriba Soft Corp 336 F.3d p. 811 at p. 816 (9th Cir. 2003); Perfect 10 Inc v Google Inc 508 F.3d p. 1146 at p. 1156 (9th Cir. 2007).

  7. 7.

    Strowel and Hanley (2009), p. 72.

  8. 8.

    Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society (the “InfoSoc Directive”) ([2001] OJ L 167/10). See also Recital 23.

  9. 9.

    For a historical introduction to the “making available” right, see Arezzo (2014) p. 524.

  10. 10.

    C More Entertainment AB v Linus Sandberg (Case C–279/13) EU:C:2015:199.

  11. 11.

    Ibid., at [24].

  12. 12.

    Ibid., at [26].

  13. 13.

    “Opinion on the Reference to the CJEU in Case C-466/12 Svensson” (“ECS Opinion”) (15 February 2013). https://europeancopyrightsociety.org/opinion-on-the-reference-to-the-cjeu-in-case-c-46612-svensson/ (accessed 20 November 2017). See, in particular, [6]–[7].

  14. 14.

    Ibid., at [53].

  15. 15.

    Report and Opinion “on the making available and communication to the public in the internet environment – focus on linking techniques on the internet” (“ALAI Report”) (16 September 2013). http://www.alai.org/en/assets/files/resolutions/making-available-right-report-opinion.pdf (accessed 20 November 2017). See, in particular, page 1 of the “Executive Summary” (emphasis in original).

  16. 16.

    Resolution on “Linking and making available on the Internet” (“AIPPI Resolution”) (20 September 2016). http://aippi.org/wp-content/uploads/2016/10/Resolution-on-Linking-and-making-available-on-the-Internet-English.pdf (accessed 20 November 2017).

  17. 17.

    Nils Svensson et al v Retriever Sverige AB (“Svensson”) (Case C-466/12) EU:C:2014:76; [2014] WLR(D) p. 67; [2014] 3 CMLR p. 4; [2014] ECDR p. 9; [2014] Bus LR p. 259; [2015] EMLR p. 5. The detailed facts are set out in the judgment at [8] et seq.

  18. 18.

    Svensson at [13].

  19. 19.

    It is trite law that the concept of “communication to the public” includes two cumulative criteria, namely an “act of communication” of a copyright work and the communication of that work to a “public”: Svensson at [16].

  20. 20.

    For further commentary on – and critique of – the “to the public”/“new public” criterion, see Ginsburg (2014); Gothy (2015); Strowel and Ide (2001), p. 403 (especially at pp. 412–415); Hugenholtz and van Velze (2016), p. 797; Karapapa (2017), p. 63; Bently and Sherman (2014), p. 169. One commentator has labelled the “new public” criterion “an (at best) enigmatic concept”: Dinwoodie (2017), p. 12. Additionally, some commentators have suggested that the “implied licence” theory can better explain and justify the “new public” criterion, while others have argued that it may actually be in conflict with international treaties (such as the Berne Convention and the WIPO Copyright Treaty) as well as the InfoSoc Directive.

  21. 21.

    Svensson at [17].

  22. 22.

    Svensson at [18] and [30]. This test has been endorsed (in various forms) in subsequent cases before the CJEU: see BestWater International GmbH v Michael Mebes et al (Case C-348/13) EU:C:2014:2315 at [15]; GS Media BV v Sanoma Media Netherlands BV et al (“GS Media”) (Case C-160/15) EU:C:2016:644 at [43]; Stichting Brein v Jack Frederik Wullems (Case C-527/15) EU:C:2017:300 at [37]; Stichting Brein v Ziggo BV et al (Case C-610/15) EU:C:2017:456 at [34].

  23. 23.

    Svensson at [19] (emphasis added) – endorsed again, more recently, in Stichting Brein v Jack Frederik Wullems (Case C-527/15) EU:C:2017:300 at [36].

  24. 24.

    See also Strowel and Ide (2001), p. 403 at p. 425.

  25. 25.

    Bently and Sherman (2014), pp. 162–163 (citation omitted).

  26. 26.

    Emphasis added.

  27. 27.

    For the avoidance of doubt, the CJEU’s analysis at [31] was concerned with the question whether there had been a communication to a “new public”, rather than whether there had been an “act of communication” in the first instance within the meaning of Art. 3(1) of the InfoSoc Directive.

  28. 28.

    Svensson at [31].

  29. 29.

    In allowing users to by-pass technological protection measures put in place by the copyright owner, such as paywalls and other subscription-based services. Cf. Resolution No. 8 of the AIPPI Resolution.

  30. 30.

    Cf. Hugenholtz and van Velze (2016), p. 797 (in particular, the “Conclusion” section).

  31. 31.

    Svensson at [20] (emphasis added).

  32. 32.

    Svensson at [25]–[28].

  33. 33.

    Svensson at [24], and endorsed again in GS Media at [37].

  34. 34.

    BestWater International GmbH v Michael Mebes et al (“BestWater”) (Case C-348/13) EU:C:2014:2315. This is an unpublished decision in the German and French languages only.

  35. 35.

    Svensson at [20].

  36. 36.

    BestWater at [15]–[18].

  37. 37.

    GS Media at [43]. Svensson and BestWater appear to have settled the question that there is no breach of the right of communication to the public where the hyperlink leads users to material that is freely available on the target website with the consent of the copyright owner: see GS Media at [40]–[42].

  38. 38.

    GS Media (Case C-160/15) EU:C:2016:644; [2017] 1 CMLR p. 30. For a comment on this decision, see Eleonora Rosati, “GS Media and its Implications for the Construction of the Right of Communication to the Public within EU Copyright Architecture” (2017) 54(4) Common Market Law Review p. 1221.

  39. 39.

    GS Media BV v Sanoma Media Netherlands BV et al (“GS Media (Opinion)”) (Case C-160/15) EU:C:2016:221.

  40. 40.

    GS Media (Opinion) at [54] (emphasis in original).

  41. 41.

    Ibid.

  42. 42.

    GS Media (Opinion) at [57]. It is submitted that the AG’s view – of an intervention which “must be vital or indispensable” – accords with the “but for” test proposed by this author earlier (see the text accompanying note 27, above).

  43. 43.

    GS Media (Opinion) at [59] (emphasis added).

  44. 44.

    GS Media (Opinion) at [60].

  45. 45.

    GS Media at [35].

  46. 46.

    Ibid. Curiously, the CJEU in GS Media did not cite the Svensson decision in this regard, nor address its various formulations of the test of “access”.

  47. 47.

    Svensson at [31].

  48. 48.

    Svensson at [20] (emphasis added).

  49. 49.

    Cf. Midelieva (2017), p. 479 at p. 482 and p. 486.

  50. 50.

    The various difficulties with using the “new public” criterion (or the affiliated concept of “consent” on the part of the copyright owner) as a control mechanism in the overall determination of copyright liability for hyperlinking were duly acknowledged by the CJEU at [22] and [46] of its judgment in GS Media.

  51. 51.

    GS Media at [47]. It has been observed that this knowledge requirement “seems to effectively establish a notice and takedown system under the head of primary liability”: Leistner (2017) p. 327 at p. 329. See also GS Media at [53].

  52. 52.

    GS Media at [51]. It is not immediately apparent why a for-profit hyperlinker should be “expected” to carry out “the necessary checks” on the copyright status of the material to which the hyperlink leads. Is there a general duty imposed on him by the law of copyright to conduct due diligence searches prior to the posting of hyperlinks and if so, what form of checks (and their extent thereof) would be “expected” of the hyperlinker? Further, what does “for profit” (or “pursuit of financial gain”) mean – would this include all operators of commercial websites? Arguably, a vast majority of publicly accessible websites containing hyperlinks can be deemed “for profit” websites. It is a shame that the CJEU did not attempt to clarify the boundaries of this element.

  53. 53.

    See, e.g., Sec. 107 of the US Copyright Act 1976 (17 USC §107) and Sec. 35(2)(a) of the Singapore Copyright Act 1987 (emphasis added).

  54. 54.

    Accessory/indirect liability should be interpreted broadly to include other associated legal concepts, such as contributory liability and authorisation liability. In these areas of the law outside of primary/direct liability, the knowledge possessed by the alleged infringer (or lack thereof) is of utmost relevance in ascertaining liability. For instance, a hyperlinker – in the absence of actual knowledge – may nevertheless be imputed with constructive knowledge of the occurrence of copyright infringement because he ought to have carried out “the necessary checks” to determine whether the target website to which the hyperlink leads was hosting copyright-infringing material.

  55. 55.

    See also Clark and Dickenson (2017), p. 265 at p. 269 (“In doing so the CJEU in GS Media removes primary copyright infringement – at least within the context of hyperlinking – from the ambit of strict liability, a concept which is not foreseen in the InfoSoc Directive.”).

  56. 56.

    For a commentary that argues in favour of a theory of indirect infringement to better deal with hyperlinking scenarios, see Schellekens (2016), p. 401 at pp. 405–407.

  57. 57.

    See GS Media at [31] and [45].

  58. 58.

    Stichting Brein v Ziggo BV et al (“Ziggo”) (Case C-610/15) EU:C:2017:456.

  59. 59.

    Ziggo at [26].

  60. 60.

    Ziggo at [37].

  61. 61.

    Ziggo at [36].

  62. 62.

    For an English case that reached a similar outcome, see Arnold J’s decision in EMI Records Ltd v British Sky Broadcasting Ltd [2013] EWHC 379 (Ch) (especially at [45]–[46]).

  63. 63.

    Svensson at [20] (emphasis added).

  64. 64.

    See, e.g., Bently and Sherman (2014), pp. 169–170: “we think that the Court of Justice would be wise to revisit its assumption that the creation of a hyperlink is a making available (or communication) of a work at all”.

  65. 65.

    Indeed, online users can still obtain their own access to the infringing work in question – independently of the hyperlink – by visiting the target website directly. Cf. also AG Wathelet’s views in GS Media (Opinion) at [54]. See, further, Crookes v Newton [2011] 3 SCR 269 at [29] and [41].

  66. 66.

    Take, for example, the analogy of a library. A particular book (like a work uploaded on the target website) is either available or it is not. Just because the library also provides a catalogue (cf. hyperlink) which makes the book more accessible to a user does not change the fact that the book already exists in the library and is available to all library users. Even if there were no catalogue on hand, that book still exists regardless, although it will be much harder to locate. See also the CJEU’s own dicta in GS Media at [48]. See, further, Strowel and Ide (2001), p. 403 at p. 425: “[A]s the work is already available to the entire internet community at the linked site’s web address, we cannot be dealing with a new act of making it available to the public. The link does not extend the work’s audience: surfers who access the work by activating the link can also consult the page directly (as long as they know its URL). Concluding that there is a new communication to the public does not seem justified (and would cause considerable difficulties in terms of copyright management)”.

  67. 67.

    Pearson Educ Inc v Ishayev 963 F. Supp.2d p. 239 at pp. 250–251 (SDNY 2013).

  68. 68.

    Tariff 22, Copyright Board of Canada (1999) 1 CPR (4th) 417 (27 October 1999). This case was eventually heard by the Supreme Court of Canada: see Society of Composers, Authors and Music Publishers of Canada v Canadian Assn of Internet Providers [2004] 2 SCR 427. See also Perfect 10 Inc v Google Inc 508 F.3d p. 1146 at p. 1161 (9th Cir. 2007).

  69. 69.

    See the World Wide Web Foundation website at http://webfoundation.org/about/sir-tim-berners-lee/ (accessed 20 November 2017).

  70. 70.

    Berners-Lee (1997).

  71. 71.

    The footnote argument was raised by the Portuguese Republic in its written observations to the CJEU in the GS Media case: see GS Media (Opinion) at [23]–[24]. See also Crookes v Newton (2009) 311 DLR (4th) 647 (British Columbia Court of Appeal) at [89].

  72. 72.

    Bently and Sherman (2014), pp. 164 and 170.

  73. 73.

    See Ticketmaster Corp v Tickets.Com Inc 54 USPQ2d p. 1344 (CD Cal 2000); Crookes v Newton (2009) 311 DLR (4th) 647 (British Columbia Court of Appeal) at [89].

  74. 74.

    Cf. Eady J’s illuminating dicta in Metropolitan International Schools Ltd v Designtechnica Corp [2009] EWHC 1765 (QB); [2010] 3 All ER p. 548 at [52]: “an analogy may be drawn perhaps with a search carried out in a large conventional library. If a scholar wishes to check for references to his research topic, he may well consult the library catalogue. On doing so, he may find that there are some potentially relevant books in one of the bays and make his way there to see whether he can make use of the content. It is hardly realistic to attribute responsibility for the content of those books to the compiler(s) of the catalogue”.

  75. 75.

    See, e.g., the dicta of the German Federal Court of Justice (Bundesgerichtshof) in Paperboy, Case I ZR 259/00 [2005] ECDR (7) p. 67 at [42]: “If the web page containing the protected work is deleted after the setting of the hyperlink, the hyperlink misses”. See also the CJEU’s own admission in GS Media at [46]: “Moreover, the content of a website to which a hyperlink enables access may be changed after the creation of that link, including the protected works, without the person who created that link necessarily being aware of it”. See, further, Crookes v Newton [2011] 3 SCR 269 at [27]. Crucially, does a hyperlinker (who supplied the link to the target website prior to these subsequent developments) have a continuing duty to monitor the legitimacy of the material to which the hyperlink leads or be otherwise subject to potential primary/direct copyright liability?

  76. 76.

    Cf. the views expressed in the ECS Opinion at [25]–[26].

  77. 77.

    Cf. the sentiments expressed by the CJEU in GS Media at [45].

  78. 78.

    This author has deliberately refrained from using the expression “secondary liability”, preferring instead “accessory/indirect liability” or liability which is derivative in nature. In certain jurisdictions, “secondary liability” may arise where the alleged defendant has commercially exploited infringing copies of copyright material – conduct that is materially different from that undertaken by accessories or indirect infringers.

  79. 79.

    For judicial and academic support of this proposition, see, e.g., TONO et al v Frank Allan Bruvik d/b/a Napster [2006] 37 IIC p. 120 (Supreme Court of Norway); Stichting BREIN v Techno Design [2006] ECDR p. 21 (Amsterdam Court of Appeal); Savola (2014) EIPR p. 279 at p. 288; Hornle (2014), p. 439 at p. 443; Leistner (2017), p. 327 at p. 332; Midelieva (2017), p. 479 at p. 487; Bently and Sherman (2014), pp. 169–170.

  80. 80.

    See Sec. 16(2) of the UK Copyright, Designs and Patents Act 1988; Secs. 3(1) and 27(1) of the Canadian Copyright Act 1985; Sec.  36(1) of the Australian Copyright Act 1968; and Sec. 31(1) of the Singapore Copyright Act 1987.

  81. 81.

    Arnold and Davies (2017), p. 442 at p. 462 (emphasis added). The authors also assert thus: “It seems plain, however, that there must be a mental element: authorisation could hardly be a doctrine of strict liability” (ibid., at p. 464). See, further, Saw CL and Chik WB, “Revisiting Authorisation Liability in Copyright Law” (2012) 24 Singapore Academy of Law Journal p. 698 (especially at [39] et seq).

  82. 82.

    Dinwoodie (2017), Chapter 1, p. 6.

  83. 83.

    Cf. GS Media at [22] and [46], as well as supra note 20.

  84. 84.

    It is beyond the scope of this paper to consider whether framing and inline linking might be objectionable under the laws of unfair competition and passing off, or whether they might otherwise amount to a breach of a copyright owner’s moral rights.

  85. 85.

    See also Svensson at [29].

  86. 86.

    Cf. the views expressed by Deschamps J – in the context of the law of defamation in Canada – in Crookes v Newton [2011] 3 SCR 269 at [96].

  87. 87.

    This was indeed the view taken by the German Federal Court of Justice (Bundesgerichtshof) in Die Realitat I [2014] GRUR p. 818. See also the views of Sir Tim-Berners Lee in his “Commentary on Web Architecture”: “embedded objects, and background sounds and images are by default to be considered part of the document …. The author of a document has responsibility for the content, even if the images he or she includes are from another web site” (Berners-Lee (1997)).

  88. 88.

    See Page 1 of the “Executive Summary” of the ALAI Report and Resolution No. 5 of the AIPPI Resolution. See also the Canadian Supreme Court’s obiter dicta in Society of Composers, Authors and Music Publishers of Canada v Canadian Assn of Internet Providers [2004] 2 SCR 427 at [102]: “Of course an Internet Service Provider in Canada can play a number of roles. In addition to its function as an intermediary, it may as well act as a content provider, or create embedded links which automatically precipitate a telecommunication of copyrighted music from another source. In such cases, copyright liability may attach to the added functions” (emphasis added). See, further, Leistner (2017), p. 327 at pp. 329–330.

  89. 89.

    In hyperlinking, it is the user’s web browser that takes the user directly to the target website. In framing and inline linking, the unauthorised material in question is electronically transmitted from the target website directly to the user’s computer screen through the user’s web browser. See, further, Perfect 10 Inc v Google Inc 508 F.3d p. 1146 at p. 1161 (9th Cir. 2007): “HTML instructions do not themselves cause infringing images to appear on the user’s computer screen. The HTML merely gives the address of the image to the user’s browser. The browser then interacts with the computer that stores the infringing image. It is this interaction that causes an infringing image to appear on the user’s computer screen”.

  90. 90.

    See Strowel and Hanley (2009), pp. 83–84: where the authors argue, relying on the Tariff 22 case before the Copyright Board of Canada ((1999) 1 CPR (4th) 417 (27 October 1999)), that “some form of ‘authorization’ [or ‘endorsement’] is arguably involved in the case of embedded links, which results in the possibility of holding the provider of an automatic link as indirectly liable for copyright infringement under Canadian law (and under other laws based on the UK-originated concept of ‘authorization’)” (emphasis added). See, further, the decision of the US Court of Appeals for the 9th Circuit in Perfect 10 Inc v Google Inc 508 F.3d p. 1146 at p. 1161 (9th Cir. 2007).

  91. 91.

    This view is consistent with the position adopted in the ECS Opinion. See, in particular, [53]: “In principle, we are unable to see why ‘framing’ as it is often called, should be treated any differently for copyright purposes from hyperlinking”.

  92. 92.

    Cf., in this regard, the views adopted in the ALAI Report and AIPPI Resolution.

  93. 93.

    Per AG Wathelet in GS Media (Opinion) at [78]. Cf. also Midelieva (2017), p. 479 at pp. 485–486.

  94. 94.

    Paramount Home Entertainment International Ltd & Ors v British Sky Broadcasting Ltd & Ors (“Paramount v BSkyB”) [2013] EWHC 3479 (Ch) at [32] and [37]. Cf. Twentieth Century Fox Film Corp v Newzbin Ltd [2010] EWHC 608 (Ch) at [125] (per Kitchin J).

  95. 95.

    Paramount v BSkyB at [32].

  96. 96.

    Ibid. Similar cases decided by Arnold J include EMI Records Ltd v British Sky Broadcasting Ltd [2013] EWHC 379 (Ch) and Football Association Premier League Ltd v British Sky Broadcasting Ltd [2013] EWHC 2058 (Ch).

  97. 97.

    Paramount v BSkyB at [34].

  98. 98.

    Ibid., at [5]. For a similar case, see Paramount Home Entertainment International Ltd & Ors v British Sky Broadcasting Ltd & Ors [2014] EWHC 937 (Ch) (before Henderson J).

  99. 99.

    See GS Media at [35] and also the text accompanying supra note 46. It will be recalled that the specific example supplied by the CJEU in [35] mirrors the “but for” test proposed by this author above.

  100. 100.

    Report of the Copyright Review Committee (2013).

  101. 101.

    Ibid., at p. 53.

  102. 102.

    Ibid. (emphasis added).

  103. 103.

    (2006) 237 ALR p. 714; [2006] FCAFC 187 (Full Court of the Federal Court of Australia).

  104. 104.

    Act No. 63 of 1968 (Cth).

  105. 105.

    See, e.g., Ticketmaster Corp v Tickets.Com Inc 54 USPQ2d p. 1344 (CD Cal. 2000). However, hyperlinking to protected content via the circumvention of technological protection measures (such as encryption) may instead amount to a violation of the DMCA: see 17 USC §1201 and Universal City Studios Inc v Reimerdes 111 F Supp.2d p. 294 (SDNY 2000).

  106. 106.

    Gershwin Publishing Corp v Columbia Artists Management Inc 443 F.2d p. 1159 at p. 1162 (2nd Cir. 1971). See also Intellectual Reserve Inc v Utah Lighthouse Ministry Inc 75 F Supp.2d p. 1290 (D Utah 1999); Pearson Educ Inc v Ishayev 963 F Supp.2d p. 239 (SDNY 2013).

  107. 107.

    See, e.g., MGM Studios Inc v Grokster Ltd 545 US p. 913 (2005).

  108. 108.

    See, e.g., Perfect 10 Inc v Google Inc 508 F.3d p. 1146 (9th Cir. 2007); Flava Works Inc v Gunter 689 F.3d p. 754 (7th Cir. 2012).

  109. 109.

    Perfect 10 Inc v Google Inc 508 F.3d p. 1146 at p. 1161 (9th Cir. 2007).

  110. 110.

    Webb v Bloch (1928) 41 CLR p. 331 at pp. 363–366 (High Court of Australia).

  111. 111.

    In Dow Jones & Company Inc v Gutnick (2002) 210 CLR p. 575, Gleeson CJ, McHugh, Gummow and Hayne JJ opined thus (at [26]): “it would be wrong to treat publication as if it were a unilateral act on the part of the publisher alone. It is not. It is a bilateral act – in which the publisher makes it available and a third party has it available for his or her comprehension” (emphasis added). See also Deschamps J’s speech in Crookes v Newton [2011] 3 SCR 269 at [55]: in the common law of defamation, “publication has two components: (1) an act that makes the defamatory information available to a third party in a comprehensible form, and (2) the receipt of the information by a third party in such a way that it is understood” (emphasis added).

  112. 112.

    Bunt v Tilley [2006] EWHC 407 (QB); [2006] 3 All ER 336 (QB) at [22] (per Eady J). See also Collins (2014), p. 101. It appears that the common law position in Australia is similar: see Duffy v Google Inc [2015] SASC 170 (per Blue J) and Visscher v Maritime Union of Australia (No 6) [2014] NSWSC 350 at [29] (per Beech-Jones J).

  113. 113.

    Bunt v Tilley [2006] EWHC 407 (QB); [2006] 3 All ER 336 (QB) at [23].

  114. 114.

    Ibid., at [36].

  115. 115.

    Ibid., at [23]. See also Tamiz v Google Inc [2013] 1 WLR p. 2151; Oriental Press Group Ltd v Fevaworks Solutions Ltd [2014] EMLR p. 11.

  116. 116.

    See Sec. 10(2) of the UK Defamation Act 2013 and Sec. 1(2) of the UK Defamation Act 1996.

  117. 117.

    Collins (2014), p. 103 (emphasis added).

  118. 118.

    Ibid.

  119. 119.

    Crookes v Newton [2011] 3 SCR 269. Although the outcome of the appeal was unanimous amongst all nine Supreme Court justices, six judges adopted the same reasoning and analysis (in the judgment delivered by Abella J), two judges substantially agreed with the reasoning of the majority (see the joint judgment of McLachlin CJ and Fish J), while Deschamps J delivered a sole-authored judgment based on a different set of reasoning and analysis.

  120. 120.

    It is important to bear in mind that this judgment did not concern (and therefore did not address the legal implications of) other forms of linking on the internet, such as framing and inline linking: see Crookes v Newton [2011] 3 SCR 269 at [43] and [52].

  121. 121.

    Ibid., at [16] and [55].

  122. 122.

    Ibid., at [1] (emphasis added; citation omitted).

  123. 123.

    Ibid., at [27] (“Hyperlinks are, in essence, references”). For a contrary view, see Deschamps J’s judgment at [96]. With respect, however, this author takes issue with Deschamps J’s criticism of the footnote analogy as being overly formalistic in nature and too focused on differences in form/technicalities (rather than substance). The learned judge’s purported distinction between how a footnote operates in the analogue world and how a hyperlink functions in the online environment is, with respect, far too pedantic.

  124. 124.

    Ibid., at [30] (and see also [26]). Cf., further, the ECS Opinion at [6] and [40] et seq. Notably, courts in the US have also followed this line of reasoning, i.e. a hyperlink (like a mere reference) does not constitute a re-publication of the defamatory material in question: see Salyer v S Poverty Law Center Inc 701 F Supp.2d p. 912 at pp. 916–917 (WD Ky 2009); In re Philadelphia Newspapers LLC 690 F.3d p. 161 at pp. 173–175 (3rd Cir 2012); US ex rel Klein v Omeros Corp 897 F Supp.2d p. 1058 at p. 1074 (WD Wash 2012); Life Designs Ranch Inc v Michael Sommer, No 32922-4 (Court of Appeals of the State of Washington, Division III, 12 November 2015).

  125. 125.

    Note, however, Abella J’s caveat in Crookes v Newton [2011] 3 SCR 269 at [40].

  126. 126.

    Ibid., at [26].

  127. 127.

    Ibid., at [26] (emphasis added).

  128. 128.

    Ibid., at [42].

  129. 129.

    Ibid., at [41].

  130. 130.

    Ibid., at [33].

  131. 131.

    See, e.g., GS Media at [31] and [45].

  132. 132.

    For example, see Crookes v Newton [2011] 3 SCR 269 at [36].

  133. 133.

    Ginsburg J (2017), p. 7 (emphasis added).

  134. 134.

    Ibid.

  135. 135.

    That is, the imposition of primary/direct liability which is harmonised under the InfoSoc Directive.

  136. 136.

    To borrow the analogy from Crookes v Newton [2011] 3 SCR 269 at [36]. See also Clark and Dickenson (2017), p. 265 at p. 277: “right holders are forced to try to stretch existing primary liability law to cover circumstances such as these, with the result that the CJEU is in turn required to employ ever more strained reasoning”.

  137. 137.

    Svensson at [20] (emphasis added).

  138. 138.

    See supra note 51.

  139. 139.

    See, e.g., Leistner (2017), p. 327; Schellekens (2016), p. 401 at p. 407; Savola (2014), p. 279 at p. 288.

  140. 140.

    This does not, however, preclude potential liability (outside the realm of copyright) on the basis of joint tortfeasorship, which is a species of primary liability (Football Dataco Ltd v Stan James Plc [2013] EWCA Civ 27 at [100], per Sir Robin Jacob). The principles of joint tortfeasorship (or joint liability in tort) were succinctly set out by Lord Toulson in Sea Shepherd UK v Fish & Fish Ltd [2015] UKSC 10 at [21].

  141. 141.

    Crookes v Newton [2011] 3 SCR 269 at [36].

  142. 142.

    Ibid.

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Correspondence to Cheng Lim Saw.

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The author is grateful to Professor Gary Chan for the stimulating discussions on the subject and to Mr. Lee Kok Thong for his valuable research assistance. All the usual disclaimers apply.

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Saw, C.L. Linking on the Internet and Copyright Liability: A Clarion Call for Doctrinal Clarity and Legal Certainty. IIC 49, 536–564 (2018). https://doi.org/10.1007/s40319-018-0709-z

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Keywords

  • Communication (or making available) to the public right
  • Copyright
  • EU law
  • Defamation law
  • Hyperlinks
  • Framing
  • Inline linking
  • Knowledge
  • Consent
  • New public
  • Online infringement