Technological Neutrality, Hyperlinking and Criminal Liability – In Search of the Missing Link?

Abstract

This article studies the concept of technological neutrality in the field of copyright from the perspective of criminal law. It illustrates the analysis with the example of hyperlinking as an act of communication to the public. The internet, in general, has a very special task enabling and facilitating freedom of expression and freedom of information. Hyperlinking, as a technology, is a highly essential feature of the proper functioning of the internet. The article shows that the Nordic criminal provisions concerning criminal copyright infringement are not sufficiently detailed to fulfil the requirements of criminal law. The line between acceptable and non-acceptable behavior needs to be drawn clearly. The problem is even more enhanced if the exceptions and limitations to copyright are not applied in a coherent manner in the offline and online worlds – i.e. technological neutrality does not apply to the application of the exceptions and limitations online. The article also shows that, regarding hyperlinking, the preventive effect pursued with criminal legislation cannot be met, since the current legislation and case law create a situation in which practically any act of hyperlinking could trigger criminal liability. The article suggests narrowing the scope of criminalization regarding acts related to hyperlinking.