Publication of a Hyperlink and Communication of a Work to the Public within Court of Justice of the European Union and Courts of Selected European Countries Case Law

Abstract

Currently, we very often deal on the Internet with the publication of links, so-called hyperlinks, that direct to the protected content. Posting hyperlinks on websites creates a possibility of accessing works. This issue is of crucial importance to the operation of the Internet because hyperlinks can be used in a way infringing copyright. Internet users are frequently unaware of the fact that their acts can infringe copyright to a work. We should pay attention to the fact that posting hyperlinks to websites containing works protected by copyright evokes doubts as to the qualification thereof coming to the question if every posting of the hyperlink should be treated as using the work or is there any additional criteria that should be fulfilled. For this reason, national courts make requests to the Court of Justice of the European Union for a preliminary ruling about the content of copyright law. What is more, the member states’ national courts have to settle cases of complex factual circumstances concerning communication of digital content to the public. This caused the need for a closer look at the publication of a hyperlink guiding to the page containing the copyrighted work as communication to the public and verification of accordance to the law referring to communication to the public on the Internet with jurisprudence practice. The main target of the consideration is an attempt to answer the question whether the publication of a hyperlink on a website leading to a protected work constitutes communication to the public. To answer this question, the article analyzes the rulings of the Court of Justice of the European Union, national courts of the EU Member States and Polish courts as well as doctrine representatives’ opinions. On this foundation, the distinct elements concerning the publication of a hyperlink on a website within the context of communication to the public have been indicated.