Hyperlinks and Making Available Right in the European Union – What Future for the Internet After Svensson?

Hyperlinks, or more simply links, represent a fundamental instrument for programmers to build websites and for users to navigate the web. The internet, as we know it today, is a complex and interrelated net of contents at the disposal of surfers: in this scenario, hyperlinks represent the wires through which this net is weaved. Indeed, thanks to links, websites interrelate to one another making it possible for users to gather, with a simple click, information scattered around several locations on the web. Moreover, linking has become today a crucial tool for the provision of old as well as new services. Think about search engines of all kinds whose functioning is based on links leading users to the webpages containing information that matches the keywords inserted in the query. Last but not least, linking has become an ordinary communication practice in social platforms where users post all kinds of digital content they wish to share with friends through the technique of so-called ‘‘inline’’ links. While the crucial role of linking within the structure and functioning of the internet is beyond doubt, linking practices have immediately attracted lawyers’ attention for their intrinsic capability of infringing third parties’ intellectual property rights of various kinds. As far as copyright is concerned, linking may present liability issues in several instances. On the one hand, liability could be found when the link itself is infringing: for example, when the link (i.e. the pointer) contains a set of words that together can be protected by copyright (for example, headline news) or when the pointer is represented by a clickable thumbnail image protected by copyright. On the other hand, liability issues may arise when the link is used as an instrument to point users to certain digital content which has not been released on the web with the author’s consent or it has not been released by the author at all. For the purpose of this paper, we will restrict this analysis to the question of whether the act of hyperlinking can amount to a direct infringement of copyright on the internet, specifically by violating the making available right introduced by Art. 3 of the Information Society Directive, a question recently referred to the Court of Justice of the EU by several national judges. The answer to this question is of paramount importance to the development of new online services for the benefit of internauts, but also to the protection of the freedom of expression which has always characterized the internet as we know it today.