Hyperlinking to copyright works in the EU: Finding a weak link

The EU Information Society Directive has been under particular scrutiny of the Court of Justice of the EU in the past several years due to many questions which have arisen in relation to hyperlinking to the webpage containing work protected by copyright. From 2014, when the judgment in Svensson introduced the notion of “new public†and the judgment in BestWater addressed the technique of framing, through GS Media where the initial posting of copyright work was without authorization of the copyright holder and hyperlinker’s knowledge and profit-making operation appear relevant, to 2017 when judgments in Stichting Brein v Wullems and in Stichting Brein v Ziggo on the devices with pre-installed features containing hyperlinks and sharing platforms, the CJEU was (re)constructing the concept of “act of communication to the public†. Each of these judgments presents a fragment which linked up to other such fragments should result in the big picture and enable understanding of the regulatory system in which online operators may lawfully use one of the key online communication tools – hyperlinks. As this paper shows, however, when joined together the elements of the architecture applicable to hyperlinks under Article 3(1) of the Information Society Directive do not form a system coherent with the international framework and functional within itself. Analysis shows that the weakest link consists of the deficient connection between the legislative concept and the architecture of the system constructed by means of the CJEU’s interpretations. Looking ahead, several perspectives are offered in this article, including the implied license scheme, use of technical restrictions, and distinguishing different linking techniques. It is put forward that, to mend the missing link, the rationale of the right of communication to the public has to be reconnected to the underlying functions of copyright.