Hyperlinking under the lens of the revamped right of communication to the public

Abstract

For more than a decade now, the right of communication to the public has been developed and interpreted by the CJEU, leading to a complex set of criteria that must be analysed on a case-by-case basis. When confronted with the copyright status of hyperlinking, the Court built upon that background in a string of cases that ended up reshaping the traditional contours of the exclusive right. The practice of linking, an essential element of the Internet and a crucial tool for any online activity carried out by entities and individuals, is now affected by the new scope of the communication to the public right, with direct consequences on the liability hyperlinkers may incur. This article will examine the status of the Court's case law to provide insights that may facilitate its interpretation and application. It will consider in particular how hyperlinkers are exposed to liability and which duties of care result from the Court's approach. It will also examine how the new understanding of hyperlinks from a copyright perspective may be relevant in the context of the proposed Directive on Copyright in the Digital Single Market.