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Abstract： The existing legal practice on hyperlinking in the EU is so strict that it fails to balance the interests of the public and copyright holders， leading to over-protection of copyright. Although Article 15（1） of the final version of the European Directive on Copyright in the Digital Single Market explicitly provides that the press publisher's rights do not apply to hyperlinking， it does not fundamentally solve the problem of excessive copyright regulation of hyperlinks. In order to promote the free flow of information on the internet and users' freedom of expression， judges should distinguish between direct and indirect liability， and rights holders must show that the hyperlink provided by the defendant is an act of infringement before taking legal action.
Key words： hyperlinking; communication to the public right; the DSM Directive; copyright
CLC： D 923 DC： A Article ID： 2096-9783（2021）04-0127-09
1 Introduction
With the development of science and technology， the internet is developing quickly as a new medium. It is against this background that copyright infringement is becoming a main problem， especially in digital areas. One of the most common copyright infringements on the internet is the abuse of hyperlinking. A hyperlink connects one document to another on the internet. Although hyperlinking can be used as a useful network tool， it has led to a series of copyright infringements in recent years. It is mainly regulated under Article 3 of the Information Society Directive 2001 （ISD）1. Decisions by the Court of Justice of the European Union （CJEU） also established some significant rules. In the cases of Svensson and Bestwater International GmbH v Mebes and GS Media， the protection of the rights holder was gradually strengthened. On March 26， 2019， the European Parliament adopted a new European Directive on Copyright in the Digital Single Market2 （DSM Directive）. However， many people are opposed to Article 15 of the New Directive. What are they concerned about？ Does the existing EU copyright law overprotect rights holders？ This article will answer these questions from the perspective of hyperlinking.
The second part of this article introduces the legal provisions on hyperlinking， including the decisions of three typical cases and provisions under the ISD. The third part of this article analyzes the current law on hyperlinking. It shows how the hyperlinking rule， established in the Svensson and Bestwater cases， makes it highly possible to limit freedom of expression， which is not consistent with Article 10 of the European Convention on Human Rights （ECHR）. In addition， this article shows that the uncertain requirement of profit-making for hyperlinkers， which was built in the GS Media case， also has a negative impact. The fourth part of this article critically analyzes Article 15 of the EU's new copyright directive. In addition， this article explores whether Article 15 of the final version of the DSM Directive fundamentally solves the weakness of the current law on hyperlinking. The fifth part of this article makes suggestions for improving the existing laws related to hyperlinking to balance the interests of copyright holders and the public. 2 The Existing Legal Practice on Hyperlinking
When the Advanced Research Projects Agency Network （ARPANET） was invented in the 1960s， people were little concerned about copyright problems since the network was designed only to connect computers owned by scientific research institutes or colleges[1]. With the growing popularity of the Internet and the development of network searching technology， copyright infringement has become increasingly severe in the digital environment. One form of online copyright infringement is the abuse of hyperlinking. Hyperlinking is a helpful network tool that makes communication more convenient by drawing original content from a web page and moving it to another page. However， it has also caused much copyright infringement in recent years， leading to the gradual improvement of related legislation. In essence， hyperlinking is a great tool that makes it easier for users to surf the internet more directly and efficiently. At first sight， it is not easy to imagine how users infringe copyright by sharing a hyperlink. In some cases， users can even navigate through the internet without logging in or subscribing. It is the function of hyperlinks that hurts the ability of rights holders to control the communication of their works to the public because users who share links are also "communicating" content[2].
Communication to the public right is regulated in Article 3 of the ISD. Under Article 3， rights holders have the exclusive right to authorize or prohibit any communication of their works to the public. Many ordinary activities fall within the scope of "communication，" such as internet streaming and emailing of digital materials in our daily lives. However， only satisfying the communication condition is insufficient to constitute an infringement of the communication to the public right. At the same time， communication should be made to the "public". In judicial practice， whether the work is made accessible to a "public" depends on three inter-related criteria： 1） the size of the group， 2） the character of the group， and 3） the character of the communication[3]. In recent decades， the "new public" notion was put forward in cases. It was first deployed in the SGAE case. In this case， the court took the view that this was a public that was different from that which the "rights holder" had in mind when it made the authorization3. By referring to the WIPO Guide to the Berne Convention， the court adopted the concept of the "new public" as one of the criteria to define a "public" public. Although legislation simply refers to "communication to the public，" its criterion has been developed and improved in judicial practice. However， it seems that in judicial practice， courts drawing on different opinions make inconsistent decisions， which has led to confusion. This section will introduce the rules built in three typical cases and analyze their changes. 2.1 The Case of Nils Svensson and Others v Retriever Sverige AB
In the case of Nils Svensson and Others v Retriever Sverige AB4， the applicants had written articles that were published in a Swedish newspaper， and users could freely read them on the newspaper's website. The defendant provided its clients with lists of hyperlinks to articles published by other websites， which included the applicants' articles. The original website launched proceedings on the basis that the defendant infringed on their copyright by communicating their news and stories to the public. This raised the following question： if anyone other than the rights holders provides a hyperlink to the copyright-protected work on his or her website， does that act constitute communication to the public within the meaning of the ISD？
First， the provision of hyperlinks to copyright-protected works was considered an "act of communication". The CJEU explained that an "act of communication" occurs when a work is made available to the public in such a way that the users are forming that public may access it， regardless of whether they actually seize the opportunity to browse[4]. Thus， in this case， the act of creating a hyperlink and sending it to others was a form of "communication". Second， the CJEU held that the hyperlinking provider's communication was not directed at a "new public" in this case. The court explained that the concept of "public" refers to an uncertain and relatively large number of potential recipients. In this case， providing hyperlinks by the defendant was aimed at all potential users of the website， and the number of recipients was indeterminate and fairly large. However， since access to the works on the website was not subject to any restrictive measures， the original website was available to any public member. As a result， the CJEU held that the defendant did not violate Article 3 of the ISD. The Court of Justice also created a rule that in this situation， even if the nature of a web-link was such to give users the impression that the works were from the originating site， the hyperlinking provider's communication was not directed at a "new public".
2.2 The Case of Bestwater International GmbH v Mebes
In the case of Bestwater International GmbH v Mebes5， the plaintiff， Bestwater， produced a short two-minute film about water pollution， and this video was posted on YouTube without the permission of Bestwater. The websites created by the defendants allowed their clients to view the film produced by Bestwater through a clickable link using the technique of "transclusion" or "framing". By using this new technical method， when users clicked on the link， a short video created by Bestwater on YouTube would appear on the website built by the defendants. It was noted that it gave the impression that the defendants created this film since users got materials without moving to the original website. Therefore， Bestwater took legal action to stop its use and demanded compensation for losses. The court first pointed out that the rule built in the Svensson case could be applied in this situation， and therefore held that the act of hyperlinking amounts to an "act of communication". This means that the insertion of a hyperlink into a website by a third party using a link to a copyright-protected work that is already freely available to the public on another website would be "communication to the public" within the meaning of Article 3（1）， if it was made for a new audience. In this case， even if the work linked gives users the impression that it comes from the website created by the defendants， this conclusion would not be questioned. However， the question remains whether the act of hyperlinking caused the copyright-protected work to be communicated to a new public. The CJEU held that as long as a work being linked could be obtained for free on the website， it must be considered that the rightsholders considered all internet users as the public when they provided the hyperlink. Therefore， the act by the defendant was legal since the copyright-protected works were still not communicated to a "new public". However， this decision has drawn complaints from some rights holders， with many scholars criticizing this step. They think that hyperlinkers were involved in some form of misrepresentation when they utilized framing， since it gives the impression to users of moving to the website where the works had already been made accessible[5]. Even worse， the rule built in this case might undermine a business model. Nowadays， new types of online platforms are constantly emerging， and some of them are remunerated through advertisements. Many online platforms will suffer if linking materials from other sites using "framing" are permitted.
2.3 The Case of GS Media
Some subsequent cases gradually perfected the principle of a "new public" and increased the protection of the rights holders. In the case of the defendant， GS Media， it operated a Dutch-based website on which it had posted a hyperlink that referred clients to unpublished nude pictures of a Dutch celebrity on an illegal website. The publisher of Playboy， who held the exclusive rights to the pictures， argued that GS Media had infringed its right of communication to the public， so the plaintiff sued GS Media for copyright infringement. Compared with the earlier case law， this case relates to copyright protecting the freely available work on the internet， but which has not been authorized by rights holders. The Dutch Supreme Court argued that setting a web link does not amount to an act of communication， which was not according to the rule established by the CJEU. The court said that a hyperlink does not make copyright-protected works available but merely helps users access them more easily. At the same time， the AG suggested a new test： whether a hyperlink is indispensable for the public to access works， to decide whether an act of communication is directed to a new public. Under this test， the act of providing a link on websites can be considered as communicating that material to the public only when the public would be unable to see or hear the work without the act of hyperlinking. However， the CJEU did not appear to follow that reasoning and clung to the more established interpretation of Article 3（1）. The Court of Justice established a rule that if works are available on the internet free of charge without the author's permission， the hyperlink will be presumed to communicate to a "new public". However， it seems that this rule might affect the free speech of many internet users since those users would not be able to know whether the content they are linking is authorized. The CJEU also realized this， prompting the court to introduce a "knowledge" element into the analysis. More specifically， it stated that the acts of hyperlink providers would not constitute "communication to the public" if they did not know or could not reasonably have known that the materials were posted without the authors' permission. However， when a user sets a web link to material protected by a paywall or other technical restrictions that prevent members of the public from accessing it for free， an act of communication to the public will occur. The court also claimed that if a link were created for commercial purposes， the hyperlink provider would be obliged to check whether the material was legal or not.
These cases illustrate that the Court of Justice has realized that hyperlinking causes much copyright infringement， and Article 3 of the ISD was generally perfected through a series of cases. From the beginning of the Svensson case to the Bestwater International GmbH v Mebes and GS Media cases， the protection of the rights holder has gradually been strengthened. This reflects the extension of the scope of an act of "communication to the public for copyright infringement".
3 Analysis of the Current Law on Hyperlinking
3.1 Limiting Freedom of Expression
In the Svensson case， the Court of Justice established the rule that linking to works that are generally available with the rights holders' permission is legal， and linking to works to which access had been limited is unlawful[3]. In the Bestwater case， the court applied its reasoning to "framing". Under this test， it is easy for users to judge whether their act of providing a link is infringing： as long as the linked content is freely available on the internet， the act of hyperlinking is legal. In contrast， linking to a secured work behind technical measures， such as a paywall， would communicate the material to a new public.
The GS media case was also related to content that was freely available on the internet. However， in contrast to the Svensson and Bestwater cases， the content， in this case， had not been made available with the permission of the rights holders. The CJEU established a rule that hyperlinks to freely available materials that have been uploaded without the permission of the rights holders could constitute an infringing act of communication to the public. Therefore， when website providers and individual users create hyperlinks， they should carefully ensure that the materials they link to are not infringing. The judgment in the GS Media case closed a systematic gap as a result of the judgment in the Svensson and Bestwater cases[6]. However， ensuring that the content linked is not infringing can be regarded as an implied obligation， as it is an invasion of the freedom of expression of website providers and internet users[7]. Such an interpretation of Article 3（1）， which regards hyperlinking to infringing content as an infringement of the communication to the public right， would lead to too much legal uncertainty. In daily life， hyperlinks play significant roles in the operation of the internet， and the public frequently uses them. This rule makes it possible for internet users to create a web link to take liability for copyright infringement， which would have a chilling effect on exercising the right to freedom of expression on the internet. The European Copyright Society （ECS） also claimed that the regulation of hyperlinking restricts the internet's ability to operate， thereby obstructing the freedom of expression of individual users. It is noted that the ECS did not regard hyperlinks as communications since hyperlinking is not an act of transmission， and transmission is a prerequisite condition for communication[8]. In addition， some argued that a hyperlink could be considered as a "reference" and referring to a material belongs to free speech[9]. In fact， Article 10 of the ECHR provides people with the right of freedom of expression. It stipulates that "the freedom to receive and impart information can be protected from interference by public authority"6. This article also finds that the hyperlinking rule is not consistent with Article 10 of the ECHR. Therefore， this article suggests that the CJEU should balance copyright and the right to freedom of expression with regard to hyperlinks.
3.2 The Uncertain Requirement of Profit-making for Hyperlinkers
In the GS Media case， the Court of Justice held that whether an act of hyperlinking constitutes "communication to the public" depends on whether the hyperlinker knows or ought to know that the work was posted without the author's permission. Besides， the court claimed that if providing the web-link is for making profits， the provider should be expected to check whether the work they offered is legal. In this case， the CJEU presumed that a defendant who provides a hyperlink "for-profit" has complete knowledge of the protected nature of that work and may not have permission from the rights holders to publish the work on the internet[10]. This raises a further question： When is a hyperlinker considered as profit-making？ The answer seems very significant for search engines such as Google， which may gain some profits from advertisements， making them likely to be regarded as profit-making entities. If they are regarded so， they are expected to know that the hyperlinks they provide to users are unauthorized and that their acts will be regarded as "communication to the public"[3]. However， it is essential for them to check all of their hyperlinks. Some argue that it is more reasonable for search engines to check whether hyperlinks are unauthorized via requests for "de-listing". If search engines are regarded as profit-making entities， people will be indirectly prevented from obtaining the desired information.
However， there are no clear rules for when a hyperlinker is to be considered profit-making. In subsequent cases， the court applied the reasoning established in the GS media case to other cases. In the Stichting Brein v Jack Frederik Wullems （"Filmspeler"） case， the defendant sold a multimedia player， a device with pre-installed software， including third-party attachments， which connected to different websites with authorized content7. The device can be used to watch online audiovisual materials without the copyright owner's permission， and the seller maintained this ability as a selling point. After comparing this case with the GS Media case， the court concluded that "It is common ground that the sale of the 'filmerspeler' [sic] multimedia player was made in full knowledge of the fact that the add-ons containing hyperlinks pre-installed on that player gave access to works published illegally on the internet." In this case， the court judged the intentions of the users of the multimedia player by using this rule. The court concluded that the buyers of Filmspeler multimedia players deliberately watched free and unauthorized films since they had admitted this through the nature of the advertisements for the player. In fact， with regard to primary infringement， copyright infringement is a strict liability tort. This means that no-fault （intentional or negligent） is irrelevant to the obligation[11]. However， the uncertain requirement of profit-making for hyperlinkers has significantly increased the number of people who can be held liable. Therefore， this article suggests clearly stipulating when a hyperlinker is acting with a profit motive and excluding the liability of search engines such as Google. In conclusion， this article finds that the existing EU copyright law shows that hyperlinking may infringe on the freedom of individual users， and it is unreasonable to expect search engines to check all hyperlinks. Thus， this article puts forward some suggestions. It is also noted that there has been a massive change in the legitimacy of hyperlinking since the new DSM Directive was passed. Many people are opposed to Articles 15 and 17 of the new Directive since they think these two articles give too much protection to copyright holders. Against this background， this article will analyze Article 15， which is related to hyperlinking， in Part 4.
4 Criticism of Article 15 of the EU's New Copyright Directive
In 2015， the European Union Commission published the Digital Single Market Strategy， which included a plan to reform the EU's copyright laws[12]. On March 26， 2019， the new DSM Directive was adopted by the European Parliament. It stipulated that member states should implement it in their national law in the next two years. The commission claimed that the DSM Directive aimed to close the "value gap" between copyright holders and the internet platform[13]. The term "value gap" reflects that they regard the interest as a digital threat rather than a digital opportunity[14]. However， there is little evidence on the effects and scale of copyright infringement in the digital realm. In contrast， the existing evidence clearly shows that many copyright holders benefit from the digital platform economy[15]. Although copyright reform was discussed during the five years of tough negotiations， some problems still remain. Many people have argued that Article 15 of the DSM established a new right for publishers but was detrimental to hyperlink providers and individual users' interests.
Early versions of the DSM Directive's press publisher rights received much criticism. Some believed the creation of this new right for press publishers to be unnecessary. On one hand， it was unlikely to produce significant licensing revenue; on the other， it was likely to strengthen large media platforms further and cause damage to smaller players. Critics also argued that it would stop the news and other information from freely flowing and create uncertainty about the scope of coverage. Seemingly to refute the accusation that Article 15 of the DSM Directive would create a "link tax"， Article 15（1） clearly stipulates that press publisher rights do not apply to hyperlinking. In order to narrow its reach， Article 15（1） also states that it does not apply to "private or non-commercial uses of a press publication by individual users" or to the use of individual words and short extracts from press publications. Did this modification eliminate the negative effects of Article 15？ In fact， even though Article 15 has been improved and the exception added， it is still unreasonable. The shortcomings of Article 15 are as follows： First， it might lead to a recentralization of online news outlets， which might negatively influence smaller publishers. Article 15 of the DSM establishes new publishers' rights. It requires news aggregator sites to pay publishers when they share articles written by publishers through online platforms for commercial purposes. However， it contains no exception for protecting small publishers. Since most of them cannot afford a "link tax"， it would be catastrophic for these small businesses. As smaller publishers do not have the ability to compete against big companies such as Google News， larger publishers may license the right to link to each other but not to smaller publishers[16]. This will lead to the recentralization of online news outlets[13]. As a result， some big publishers will cover news markets entirely， which will have a negative impact on the diversity of information on the internet. According to a recent study in Spain， smaller publishers lose twice as much as large publishers after the enactment of a new law[17]. Other research also showed that too much copyright would harm the diversity of cultural expression[18].
Second， it limits freedom of expression and the speed of information sharing on the internet. Article 15 of the DSM creates new neighboring rights that rights holders can use to remove materials from the internet. On the one hand， this limits the right to freedom of expression. News publishers can prevent individuals from writing a critical article of their news by charging for hyperlinks to their news or directly avoiding those critics linking to their news or articles[16]. This article finds that Article 15 stipulates that the protection of press publishers concerning online use does not apply to individuals for non-commercial use， which seems to favor individual users. However， it is still not sure whether an individual user， having a vast number of fans， pays "link tax" for sharing a hyperlink to a press publication[19]. As a result， such a neighboring right limits freedom of expression to some extent. On the other hand， although Article 15 stipulates that the protection of press publishers concerning online use does not apply to "very short" extracts from a press publication， what exactly constitutes a "very short extract" of a press publication is unclear. Against this background， smaller publishers might stop showing summaries of web links， which will make it harder for them to reach readers online[17]. At the same time， users will not be able to find the materials they are looking for， limiting their right to access information. Overall， Article 15 of the new DSM gives too much protection to rights holders while neglecting individuals and smaller publishers. The article has been enacted in some countries， such as Germany and Spain; however， recent cases show that in Spain， the closing of news aggregation sites such as Google News and smaller publishers reduced more than 60% of internet traffic to newspapers in the first three months of 2015[13]. The final version of Article 15 under the DSM Directive is better than the old version since the new one sets up exceptions for hyperlinking， "private or non-commercial uses of press publications by individual users"， and the "use of individual words and short extracts of press publications". However， the unclear interpretation of the terms in Article 15 makes it unlikely that member states of the EU will implement this new right harmoniously. Overall， the EU legislature's efforts to protect copyright holders from being infringed on in the digital arena are excessive. They should be modified to balance the interests of rights holders， website providers， and individual users.
5 Proposals for a Reform of Copyright Law Related to Hyperlinks
Through an analysis of case law， this article found that there is a series of problems in the legal provisions on hyperlinking in the EU. In the GS Media case， the court established a rule that internet users providing hyperlinks to content that is not authorized by rights holders infringes on the right of communication to the public. In the Filmspeler case， the users who brought Filmspeler multimedia players deliberately accessed unauthorized films because they realized this function through the nature of the advertisements for the player. Although the buyers were not held accountable for infringement， in this case， the possibility of them being liable for copyright infringement cannot be excluded. It is believed that the efforts of the legislature and the courts to protect rights holders against copyright infringement online are excessive， especially in the field of hyperlinking. This approach has led to the over-protection of copyright and does not take sufficient account of the interests of individual users and search engines. More seriously， it may even block the free flow of information and the free expression of users. The DSM Directive has been under consideration for the past few years， and the final version of the Directive was promulgated on April 17， 2019. The final version is better in some respects than the old version. Article 15 explicitly states that press publisher rights do not apply to hyperlinking， which means they are aware that this is controversial and may lead to excessive protection of rights holders. However， Article 15 still has negative effects in many aspects. For this reason， it is necessary to modify the copyright regulations related to hyperlinking in order to balance the interests of copyright holders and the public. First， this article suggests that rights holders must show that the hyperlink leads to an act of infringement before they take action， so it gives more freedom to people to create hyperlinks. Under the rule established by the CJEU in the EU， an internet user incurs liability for the infringement of the communication to the public right simply by offering public access to work. This means that rights holders need not prove that any member of the public， in fact， accessed the work or any infringement has been caused. This article believes this rule provides too much protection to copyright holders. Making materials available for downloading may not infringe the distribution rights without additional proof of actual downloads in the US8. EU and American courts adopt different principles of liability attribution because EU courts focus on the act of "making available" under Article 3 of the ISD. In contrast， American courts pay more attention to the result of the "offer" under section 106 of the American Copyright Act. Case law in the US indicates that a violation of the distribution rights requires proof of an actual work transfer9. For instance， in Livnat v. Lavi， the plaintiff failed to prove that the linker's URL was clicked， so the defendant argued that the web-link did not， in fact， "materially contribute"， although it had the potential to facilitate an act of direct infringement10. In Atlantic Recording Corp. v. Howell， the plaintiff failed to prove that the link actually delivered a digital copy of the work rather than merely offering downloads， so the defendant could argue that the general rule created in case law holds that an "infringement requires an actual dissemination". Therefore no act of direct infringement had been established11.
Overall， the standards under both EU and American law consider the significance of the defendant's action. Both regimes try to differentiate between actors who merely supply the means to execute acts of infringement and those who play a more active role in promoting infringement. In the EU， the CJEU has clarified the difference between the mere supply of facilities for communication and the performance of a more "essential" role in communication. In the US， the inter-related criteria focus on whether the defendant "materially contributed" to an act of direct infringement[10]. This article suggests that rights holders must show that the hyperlink leads to an act of infringement before they take action. At least， the CJEU could refer to the U.S. contributory liability analysis， which requires that the participation in the infringement be "substantial" rather than a "mere quantitative contribution" to the primary infringement. Second， this article suggests distinguishing between direct and indirect liability and making the person who gives the hyperlink， rather than the website provider， directly responsible for the infringement. Introducing the imposition of secondary liability for internet service providers （"ISPs"） would be an effective solution to make a fair balance between the interests of copyright holders， users， and ISPs[20]. As mentioned before， whether a hyperlink provider faces a claim of direct infringement for embedding authorized content relies on the standard of "substantial infringement." However， as for ISPs， only when they know that the linked content is unauthorized can hyperlinking be regarded as an act that incurs secondary liability[21]. In addition， profit-making should not be an independent criterion in view of its complex application to the digital environment. Under the uncertain requirements for profit-making by hyperlinkers， it is highly possible for search engines such as Google to be responsible for any infringement of any third party's communication to public rights since they are remunerated by advertising. However， companies such as Google and YouTube have facilitated information flow and transferred creative thinking. In this context， judges should take other factors into account when choosing the appropriate remedy， such as the extent to which the defendant facilitated users in accessing content illegally， the seriousness of the economic damages the defendant caused to the rights holders， and the amount of profit the defendant made[21].
6 Conclusion
From the beginning of the Svensson case to the Bestwater International GmbH v Mebes and GS Media cases， the protection of the rights holder is gradually strengthened. In the Svensson case， the CJEU argued that providing hyperlinks to copyright-protected works could be considered an "act of communication". In addition， the "new public" criterion applied in this case effectively excluded hyperlinks to unrestricted websites from the scope of the right of communication to the public. In the Bestwater case， the court applied its reasoning to "framing"， according to which the insertion of a hyperlink into a website by the new technical method amounts to "communication to the public"， although it gives the impression to internet users of moving to the website where the content has already been made accessible. The GS Media case involved the provision of links to an unlawful source without the authorization of the copyright holders. It closed a systematic gap that had been left after the judgments in the Svensson and Bestwater cases since both were related to content that had been made available with the consent of the rights holder. After explaining the existing legal practice on hyperlinking， this article found two main issues in the existing EU case law. First， the rule established in the Svensson and Bestwater cases can be regarded as an implied obligation of website providers and internet users to carefully ensure that the materials they link to are not infringing when creating hyperlinks. This will be an invasion of the freedom of expression of the public on the internet. Second， the rule established in the GS Media case said that if providing a web link to make a profit， the provider should be expected to check whether the work they offer is legal. However， there are no clear rules for establishing when a hyperlinker is acting with a profit motive， and it is unreasonable for search engines to check whether hyperlinks are unauthorized. In addition， although the final version of the DSM Directive is better than previous drafts in some respects， this article still finds that there are two main shortcomings of Article 15 that relate to hyperlinking： 1） it might have a negative influence on smaller publishers， which will harm the diversity of cultural expression， and 2） it will limit freedom of expression and access to information for individual users. Since many of its terms are unclear， the extent of the harm will depend on how member states implement the directive. In this context， this article believes that the existing legislation provides over-protection of copyright holders， and the law should be modified to take sufficient account of the interests of the public， especially the interests of individual users and search engines （such as Google）. The final part of the article offers two main suggestions. First， rights holders must show that the hyperlink leads to infringement before they take action， giving more freedom to people to create hyperlinks. Second， direct and indirect liability should be distinguished， and the court should make the person who creates the hyperlink， rather than the website provider， directly responsible for the infringement. In addition， this article suggests that the CJEU balances copyright and the right to freedom of expression when processing hyperlinking cases. This article also believes that it is necessary to clearly stipulate when a hyperlinker is acting with a profit motive and exclude search engines from liability.
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[19] Rebecca Burgess. EU Copyright Directive Updates： What You Need to Know[EB/OL]. [2021-05-06]. https：//www.pixsy.com/eu-copyright-directive/.
[20] Lia Shikhiashvili. The Same Problem， Different Outcome： Online Copyright Infringement and Intermediary Liability under US and EU Laws[J]. University of San Francisco Intellectual Property and Technology Law Journal， 2019， 24： 11.
[21] Lyubomira Midelieva. Rethinking Hyperlinking： Addressing Hyperlinks to Unauthorised Content in Copyright Law and Policy[J]. European Intellectual Property Review， 2017， 39（8）： 479.
歐盟版权指令第15条之评价与反思：以超链接规制为视角
梁蒙娜
（南京大学 法学院，南京210093）
摘 要：欧盟现有法律对于超链接的侵权管制过于严格，这种做法没有平衡公共利益和著作权人的利益，造成了对著作权的过度保护。虽然最终通过的《数字化单一市场著作权指令》第15条规定新闻出版媒体的邻接权规则不适用于超链接行为，但是这并未从根本上解决对超链接的著作权规制过严问题。为了促进互联网上信息的自由流通以及用户的表达自由，法官应当对超链接提供者与网络平台的侵权责任进行区分，并且仅在超链接导致侵权结果时对链接提供者进行追责。
关键词：超链接;向公众传播权;数字化单一市场著作权指令;著作权
Key words： hyperlinking; communication to the public right; the DSM Directive; copyright
CLC： D 923 DC： A Article ID： 2096-9783（2021）04-0127-09
1 Introduction
With the development of science and technology， the internet is developing quickly as a new medium. It is against this background that copyright infringement is becoming a main problem， especially in digital areas. One of the most common copyright infringements on the internet is the abuse of hyperlinking. A hyperlink connects one document to another on the internet. Although hyperlinking can be used as a useful network tool， it has led to a series of copyright infringements in recent years. It is mainly regulated under Article 3 of the Information Society Directive 2001 （ISD）1. Decisions by the Court of Justice of the European Union （CJEU） also established some significant rules. In the cases of Svensson and Bestwater International GmbH v Mebes and GS Media， the protection of the rights holder was gradually strengthened. On March 26， 2019， the European Parliament adopted a new European Directive on Copyright in the Digital Single Market2 （DSM Directive）. However， many people are opposed to Article 15 of the New Directive. What are they concerned about？ Does the existing EU copyright law overprotect rights holders？ This article will answer these questions from the perspective of hyperlinking.
The second part of this article introduces the legal provisions on hyperlinking， including the decisions of three typical cases and provisions under the ISD. The third part of this article analyzes the current law on hyperlinking. It shows how the hyperlinking rule， established in the Svensson and Bestwater cases， makes it highly possible to limit freedom of expression， which is not consistent with Article 10 of the European Convention on Human Rights （ECHR）. In addition， this article shows that the uncertain requirement of profit-making for hyperlinkers， which was built in the GS Media case， also has a negative impact. The fourth part of this article critically analyzes Article 15 of the EU's new copyright directive. In addition， this article explores whether Article 15 of the final version of the DSM Directive fundamentally solves the weakness of the current law on hyperlinking. The fifth part of this article makes suggestions for improving the existing laws related to hyperlinking to balance the interests of copyright holders and the public. 2 The Existing Legal Practice on Hyperlinking
When the Advanced Research Projects Agency Network （ARPANET） was invented in the 1960s， people were little concerned about copyright problems since the network was designed only to connect computers owned by scientific research institutes or colleges[1]. With the growing popularity of the Internet and the development of network searching technology， copyright infringement has become increasingly severe in the digital environment. One form of online copyright infringement is the abuse of hyperlinking. Hyperlinking is a helpful network tool that makes communication more convenient by drawing original content from a web page and moving it to another page. However， it has also caused much copyright infringement in recent years， leading to the gradual improvement of related legislation. In essence， hyperlinking is a great tool that makes it easier for users to surf the internet more directly and efficiently. At first sight， it is not easy to imagine how users infringe copyright by sharing a hyperlink. In some cases， users can even navigate through the internet without logging in or subscribing. It is the function of hyperlinks that hurts the ability of rights holders to control the communication of their works to the public because users who share links are also "communicating" content[2].
Communication to the public right is regulated in Article 3 of the ISD. Under Article 3， rights holders have the exclusive right to authorize or prohibit any communication of their works to the public. Many ordinary activities fall within the scope of "communication，" such as internet streaming and emailing of digital materials in our daily lives. However， only satisfying the communication condition is insufficient to constitute an infringement of the communication to the public right. At the same time， communication should be made to the "public". In judicial practice， whether the work is made accessible to a "public" depends on three inter-related criteria： 1） the size of the group， 2） the character of the group， and 3） the character of the communication[3]. In recent decades， the "new public" notion was put forward in cases. It was first deployed in the SGAE case. In this case， the court took the view that this was a public that was different from that which the "rights holder" had in mind when it made the authorization3. By referring to the WIPO Guide to the Berne Convention， the court adopted the concept of the "new public" as one of the criteria to define a "public" public. Although legislation simply refers to "communication to the public，" its criterion has been developed and improved in judicial practice. However， it seems that in judicial practice， courts drawing on different opinions make inconsistent decisions， which has led to confusion. This section will introduce the rules built in three typical cases and analyze their changes. 2.1 The Case of Nils Svensson and Others v Retriever Sverige AB
In the case of Nils Svensson and Others v Retriever Sverige AB4， the applicants had written articles that were published in a Swedish newspaper， and users could freely read them on the newspaper's website. The defendant provided its clients with lists of hyperlinks to articles published by other websites， which included the applicants' articles. The original website launched proceedings on the basis that the defendant infringed on their copyright by communicating their news and stories to the public. This raised the following question： if anyone other than the rights holders provides a hyperlink to the copyright-protected work on his or her website， does that act constitute communication to the public within the meaning of the ISD？
First， the provision of hyperlinks to copyright-protected works was considered an "act of communication". The CJEU explained that an "act of communication" occurs when a work is made available to the public in such a way that the users are forming that public may access it， regardless of whether they actually seize the opportunity to browse[4]. Thus， in this case， the act of creating a hyperlink and sending it to others was a form of "communication". Second， the CJEU held that the hyperlinking provider's communication was not directed at a "new public" in this case. The court explained that the concept of "public" refers to an uncertain and relatively large number of potential recipients. In this case， providing hyperlinks by the defendant was aimed at all potential users of the website， and the number of recipients was indeterminate and fairly large. However， since access to the works on the website was not subject to any restrictive measures， the original website was available to any public member. As a result， the CJEU held that the defendant did not violate Article 3 of the ISD. The Court of Justice also created a rule that in this situation， even if the nature of a web-link was such to give users the impression that the works were from the originating site， the hyperlinking provider's communication was not directed at a "new public".
2.2 The Case of Bestwater International GmbH v Mebes
In the case of Bestwater International GmbH v Mebes5， the plaintiff， Bestwater， produced a short two-minute film about water pollution， and this video was posted on YouTube without the permission of Bestwater. The websites created by the defendants allowed their clients to view the film produced by Bestwater through a clickable link using the technique of "transclusion" or "framing". By using this new technical method， when users clicked on the link， a short video created by Bestwater on YouTube would appear on the website built by the defendants. It was noted that it gave the impression that the defendants created this film since users got materials without moving to the original website. Therefore， Bestwater took legal action to stop its use and demanded compensation for losses. The court first pointed out that the rule built in the Svensson case could be applied in this situation， and therefore held that the act of hyperlinking amounts to an "act of communication". This means that the insertion of a hyperlink into a website by a third party using a link to a copyright-protected work that is already freely available to the public on another website would be "communication to the public" within the meaning of Article 3（1）， if it was made for a new audience. In this case， even if the work linked gives users the impression that it comes from the website created by the defendants， this conclusion would not be questioned. However， the question remains whether the act of hyperlinking caused the copyright-protected work to be communicated to a new public. The CJEU held that as long as a work being linked could be obtained for free on the website， it must be considered that the rightsholders considered all internet users as the public when they provided the hyperlink. Therefore， the act by the defendant was legal since the copyright-protected works were still not communicated to a "new public". However， this decision has drawn complaints from some rights holders， with many scholars criticizing this step. They think that hyperlinkers were involved in some form of misrepresentation when they utilized framing， since it gives the impression to users of moving to the website where the works had already been made accessible[5]. Even worse， the rule built in this case might undermine a business model. Nowadays， new types of online platforms are constantly emerging， and some of them are remunerated through advertisements. Many online platforms will suffer if linking materials from other sites using "framing" are permitted.
2.3 The Case of GS Media
Some subsequent cases gradually perfected the principle of a "new public" and increased the protection of the rights holders. In the case of the defendant， GS Media， it operated a Dutch-based website on which it had posted a hyperlink that referred clients to unpublished nude pictures of a Dutch celebrity on an illegal website. The publisher of Playboy， who held the exclusive rights to the pictures， argued that GS Media had infringed its right of communication to the public， so the plaintiff sued GS Media for copyright infringement. Compared with the earlier case law， this case relates to copyright protecting the freely available work on the internet， but which has not been authorized by rights holders. The Dutch Supreme Court argued that setting a web link does not amount to an act of communication， which was not according to the rule established by the CJEU. The court said that a hyperlink does not make copyright-protected works available but merely helps users access them more easily. At the same time， the AG suggested a new test： whether a hyperlink is indispensable for the public to access works， to decide whether an act of communication is directed to a new public. Under this test， the act of providing a link on websites can be considered as communicating that material to the public only when the public would be unable to see or hear the work without the act of hyperlinking. However， the CJEU did not appear to follow that reasoning and clung to the more established interpretation of Article 3（1）. The Court of Justice established a rule that if works are available on the internet free of charge without the author's permission， the hyperlink will be presumed to communicate to a "new public". However， it seems that this rule might affect the free speech of many internet users since those users would not be able to know whether the content they are linking is authorized. The CJEU also realized this， prompting the court to introduce a "knowledge" element into the analysis. More specifically， it stated that the acts of hyperlink providers would not constitute "communication to the public" if they did not know or could not reasonably have known that the materials were posted without the authors' permission. However， when a user sets a web link to material protected by a paywall or other technical restrictions that prevent members of the public from accessing it for free， an act of communication to the public will occur. The court also claimed that if a link were created for commercial purposes， the hyperlink provider would be obliged to check whether the material was legal or not.
These cases illustrate that the Court of Justice has realized that hyperlinking causes much copyright infringement， and Article 3 of the ISD was generally perfected through a series of cases. From the beginning of the Svensson case to the Bestwater International GmbH v Mebes and GS Media cases， the protection of the rights holder has gradually been strengthened. This reflects the extension of the scope of an act of "communication to the public for copyright infringement".
3 Analysis of the Current Law on Hyperlinking
3.1 Limiting Freedom of Expression
In the Svensson case， the Court of Justice established the rule that linking to works that are generally available with the rights holders' permission is legal， and linking to works to which access had been limited is unlawful[3]. In the Bestwater case， the court applied its reasoning to "framing". Under this test， it is easy for users to judge whether their act of providing a link is infringing： as long as the linked content is freely available on the internet， the act of hyperlinking is legal. In contrast， linking to a secured work behind technical measures， such as a paywall， would communicate the material to a new public.
The GS media case was also related to content that was freely available on the internet. However， in contrast to the Svensson and Bestwater cases， the content， in this case， had not been made available with the permission of the rights holders. The CJEU established a rule that hyperlinks to freely available materials that have been uploaded without the permission of the rights holders could constitute an infringing act of communication to the public. Therefore， when website providers and individual users create hyperlinks， they should carefully ensure that the materials they link to are not infringing. The judgment in the GS Media case closed a systematic gap as a result of the judgment in the Svensson and Bestwater cases[6]. However， ensuring that the content linked is not infringing can be regarded as an implied obligation， as it is an invasion of the freedom of expression of website providers and internet users[7]. Such an interpretation of Article 3（1）， which regards hyperlinking to infringing content as an infringement of the communication to the public right， would lead to too much legal uncertainty. In daily life， hyperlinks play significant roles in the operation of the internet， and the public frequently uses them. This rule makes it possible for internet users to create a web link to take liability for copyright infringement， which would have a chilling effect on exercising the right to freedom of expression on the internet. The European Copyright Society （ECS） also claimed that the regulation of hyperlinking restricts the internet's ability to operate， thereby obstructing the freedom of expression of individual users. It is noted that the ECS did not regard hyperlinks as communications since hyperlinking is not an act of transmission， and transmission is a prerequisite condition for communication[8]. In addition， some argued that a hyperlink could be considered as a "reference" and referring to a material belongs to free speech[9]. In fact， Article 10 of the ECHR provides people with the right of freedom of expression. It stipulates that "the freedom to receive and impart information can be protected from interference by public authority"6. This article also finds that the hyperlinking rule is not consistent with Article 10 of the ECHR. Therefore， this article suggests that the CJEU should balance copyright and the right to freedom of expression with regard to hyperlinks.
3.2 The Uncertain Requirement of Profit-making for Hyperlinkers
In the GS Media case， the Court of Justice held that whether an act of hyperlinking constitutes "communication to the public" depends on whether the hyperlinker knows or ought to know that the work was posted without the author's permission. Besides， the court claimed that if providing the web-link is for making profits， the provider should be expected to check whether the work they offered is legal. In this case， the CJEU presumed that a defendant who provides a hyperlink "for-profit" has complete knowledge of the protected nature of that work and may not have permission from the rights holders to publish the work on the internet[10]. This raises a further question： When is a hyperlinker considered as profit-making？ The answer seems very significant for search engines such as Google， which may gain some profits from advertisements， making them likely to be regarded as profit-making entities. If they are regarded so， they are expected to know that the hyperlinks they provide to users are unauthorized and that their acts will be regarded as "communication to the public"[3]. However， it is essential for them to check all of their hyperlinks. Some argue that it is more reasonable for search engines to check whether hyperlinks are unauthorized via requests for "de-listing". If search engines are regarded as profit-making entities， people will be indirectly prevented from obtaining the desired information.
However， there are no clear rules for when a hyperlinker is to be considered profit-making. In subsequent cases， the court applied the reasoning established in the GS media case to other cases. In the Stichting Brein v Jack Frederik Wullems （"Filmspeler"） case， the defendant sold a multimedia player， a device with pre-installed software， including third-party attachments， which connected to different websites with authorized content7. The device can be used to watch online audiovisual materials without the copyright owner's permission， and the seller maintained this ability as a selling point. After comparing this case with the GS Media case， the court concluded that "It is common ground that the sale of the 'filmerspeler' [sic] multimedia player was made in full knowledge of the fact that the add-ons containing hyperlinks pre-installed on that player gave access to works published illegally on the internet." In this case， the court judged the intentions of the users of the multimedia player by using this rule. The court concluded that the buyers of Filmspeler multimedia players deliberately watched free and unauthorized films since they had admitted this through the nature of the advertisements for the player. In fact， with regard to primary infringement， copyright infringement is a strict liability tort. This means that no-fault （intentional or negligent） is irrelevant to the obligation[11]. However， the uncertain requirement of profit-making for hyperlinkers has significantly increased the number of people who can be held liable. Therefore， this article suggests clearly stipulating when a hyperlinker is acting with a profit motive and excluding the liability of search engines such as Google. In conclusion， this article finds that the existing EU copyright law shows that hyperlinking may infringe on the freedom of individual users， and it is unreasonable to expect search engines to check all hyperlinks. Thus， this article puts forward some suggestions. It is also noted that there has been a massive change in the legitimacy of hyperlinking since the new DSM Directive was passed. Many people are opposed to Articles 15 and 17 of the new Directive since they think these two articles give too much protection to copyright holders. Against this background， this article will analyze Article 15， which is related to hyperlinking， in Part 4.
4 Criticism of Article 15 of the EU's New Copyright Directive
In 2015， the European Union Commission published the Digital Single Market Strategy， which included a plan to reform the EU's copyright laws[12]. On March 26， 2019， the new DSM Directive was adopted by the European Parliament. It stipulated that member states should implement it in their national law in the next two years. The commission claimed that the DSM Directive aimed to close the "value gap" between copyright holders and the internet platform[13]. The term "value gap" reflects that they regard the interest as a digital threat rather than a digital opportunity[14]. However， there is little evidence on the effects and scale of copyright infringement in the digital realm. In contrast， the existing evidence clearly shows that many copyright holders benefit from the digital platform economy[15]. Although copyright reform was discussed during the five years of tough negotiations， some problems still remain. Many people have argued that Article 15 of the DSM established a new right for publishers but was detrimental to hyperlink providers and individual users' interests.
Early versions of the DSM Directive's press publisher rights received much criticism. Some believed the creation of this new right for press publishers to be unnecessary. On one hand， it was unlikely to produce significant licensing revenue; on the other， it was likely to strengthen large media platforms further and cause damage to smaller players. Critics also argued that it would stop the news and other information from freely flowing and create uncertainty about the scope of coverage. Seemingly to refute the accusation that Article 15 of the DSM Directive would create a "link tax"， Article 15（1） clearly stipulates that press publisher rights do not apply to hyperlinking. In order to narrow its reach， Article 15（1） also states that it does not apply to "private or non-commercial uses of a press publication by individual users" or to the use of individual words and short extracts from press publications. Did this modification eliminate the negative effects of Article 15？ In fact， even though Article 15 has been improved and the exception added， it is still unreasonable. The shortcomings of Article 15 are as follows： First， it might lead to a recentralization of online news outlets， which might negatively influence smaller publishers. Article 15 of the DSM establishes new publishers' rights. It requires news aggregator sites to pay publishers when they share articles written by publishers through online platforms for commercial purposes. However， it contains no exception for protecting small publishers. Since most of them cannot afford a "link tax"， it would be catastrophic for these small businesses. As smaller publishers do not have the ability to compete against big companies such as Google News， larger publishers may license the right to link to each other but not to smaller publishers[16]. This will lead to the recentralization of online news outlets[13]. As a result， some big publishers will cover news markets entirely， which will have a negative impact on the diversity of information on the internet. According to a recent study in Spain， smaller publishers lose twice as much as large publishers after the enactment of a new law[17]. Other research also showed that too much copyright would harm the diversity of cultural expression[18].
Second， it limits freedom of expression and the speed of information sharing on the internet. Article 15 of the DSM creates new neighboring rights that rights holders can use to remove materials from the internet. On the one hand， this limits the right to freedom of expression. News publishers can prevent individuals from writing a critical article of their news by charging for hyperlinks to their news or directly avoiding those critics linking to their news or articles[16]. This article finds that Article 15 stipulates that the protection of press publishers concerning online use does not apply to individuals for non-commercial use， which seems to favor individual users. However， it is still not sure whether an individual user， having a vast number of fans， pays "link tax" for sharing a hyperlink to a press publication[19]. As a result， such a neighboring right limits freedom of expression to some extent. On the other hand， although Article 15 stipulates that the protection of press publishers concerning online use does not apply to "very short" extracts from a press publication， what exactly constitutes a "very short extract" of a press publication is unclear. Against this background， smaller publishers might stop showing summaries of web links， which will make it harder for them to reach readers online[17]. At the same time， users will not be able to find the materials they are looking for， limiting their right to access information. Overall， Article 15 of the new DSM gives too much protection to rights holders while neglecting individuals and smaller publishers. The article has been enacted in some countries， such as Germany and Spain; however， recent cases show that in Spain， the closing of news aggregation sites such as Google News and smaller publishers reduced more than 60% of internet traffic to newspapers in the first three months of 2015[13]. The final version of Article 15 under the DSM Directive is better than the old version since the new one sets up exceptions for hyperlinking， "private or non-commercial uses of press publications by individual users"， and the "use of individual words and short extracts of press publications". However， the unclear interpretation of the terms in Article 15 makes it unlikely that member states of the EU will implement this new right harmoniously. Overall， the EU legislature's efforts to protect copyright holders from being infringed on in the digital arena are excessive. They should be modified to balance the interests of rights holders， website providers， and individual users.
5 Proposals for a Reform of Copyright Law Related to Hyperlinks
Through an analysis of case law， this article found that there is a series of problems in the legal provisions on hyperlinking in the EU. In the GS Media case， the court established a rule that internet users providing hyperlinks to content that is not authorized by rights holders infringes on the right of communication to the public. In the Filmspeler case， the users who brought Filmspeler multimedia players deliberately accessed unauthorized films because they realized this function through the nature of the advertisements for the player. Although the buyers were not held accountable for infringement， in this case， the possibility of them being liable for copyright infringement cannot be excluded. It is believed that the efforts of the legislature and the courts to protect rights holders against copyright infringement online are excessive， especially in the field of hyperlinking. This approach has led to the over-protection of copyright and does not take sufficient account of the interests of individual users and search engines. More seriously， it may even block the free flow of information and the free expression of users. The DSM Directive has been under consideration for the past few years， and the final version of the Directive was promulgated on April 17， 2019. The final version is better in some respects than the old version. Article 15 explicitly states that press publisher rights do not apply to hyperlinking， which means they are aware that this is controversial and may lead to excessive protection of rights holders. However， Article 15 still has negative effects in many aspects. For this reason， it is necessary to modify the copyright regulations related to hyperlinking in order to balance the interests of copyright holders and the public. First， this article suggests that rights holders must show that the hyperlink leads to an act of infringement before they take action， so it gives more freedom to people to create hyperlinks. Under the rule established by the CJEU in the EU， an internet user incurs liability for the infringement of the communication to the public right simply by offering public access to work. This means that rights holders need not prove that any member of the public， in fact， accessed the work or any infringement has been caused. This article believes this rule provides too much protection to copyright holders. Making materials available for downloading may not infringe the distribution rights without additional proof of actual downloads in the US8. EU and American courts adopt different principles of liability attribution because EU courts focus on the act of "making available" under Article 3 of the ISD. In contrast， American courts pay more attention to the result of the "offer" under section 106 of the American Copyright Act. Case law in the US indicates that a violation of the distribution rights requires proof of an actual work transfer9. For instance， in Livnat v. Lavi， the plaintiff failed to prove that the linker's URL was clicked， so the defendant argued that the web-link did not， in fact， "materially contribute"， although it had the potential to facilitate an act of direct infringement10. In Atlantic Recording Corp. v. Howell， the plaintiff failed to prove that the link actually delivered a digital copy of the work rather than merely offering downloads， so the defendant could argue that the general rule created in case law holds that an "infringement requires an actual dissemination". Therefore no act of direct infringement had been established11.
Overall， the standards under both EU and American law consider the significance of the defendant's action. Both regimes try to differentiate between actors who merely supply the means to execute acts of infringement and those who play a more active role in promoting infringement. In the EU， the CJEU has clarified the difference between the mere supply of facilities for communication and the performance of a more "essential" role in communication. In the US， the inter-related criteria focus on whether the defendant "materially contributed" to an act of direct infringement[10]. This article suggests that rights holders must show that the hyperlink leads to an act of infringement before they take action. At least， the CJEU could refer to the U.S. contributory liability analysis， which requires that the participation in the infringement be "substantial" rather than a "mere quantitative contribution" to the primary infringement. Second， this article suggests distinguishing between direct and indirect liability and making the person who gives the hyperlink， rather than the website provider， directly responsible for the infringement. Introducing the imposition of secondary liability for internet service providers （"ISPs"） would be an effective solution to make a fair balance between the interests of copyright holders， users， and ISPs[20]. As mentioned before， whether a hyperlink provider faces a claim of direct infringement for embedding authorized content relies on the standard of "substantial infringement." However， as for ISPs， only when they know that the linked content is unauthorized can hyperlinking be regarded as an act that incurs secondary liability[21]. In addition， profit-making should not be an independent criterion in view of its complex application to the digital environment. Under the uncertain requirements for profit-making by hyperlinkers， it is highly possible for search engines such as Google to be responsible for any infringement of any third party's communication to public rights since they are remunerated by advertising. However， companies such as Google and YouTube have facilitated information flow and transferred creative thinking. In this context， judges should take other factors into account when choosing the appropriate remedy， such as the extent to which the defendant facilitated users in accessing content illegally， the seriousness of the economic damages the defendant caused to the rights holders， and the amount of profit the defendant made[21].
6 Conclusion
From the beginning of the Svensson case to the Bestwater International GmbH v Mebes and GS Media cases， the protection of the rights holder is gradually strengthened. In the Svensson case， the CJEU argued that providing hyperlinks to copyright-protected works could be considered an "act of communication". In addition， the "new public" criterion applied in this case effectively excluded hyperlinks to unrestricted websites from the scope of the right of communication to the public. In the Bestwater case， the court applied its reasoning to "framing"， according to which the insertion of a hyperlink into a website by the new technical method amounts to "communication to the public"， although it gives the impression to internet users of moving to the website where the content has already been made accessible. The GS Media case involved the provision of links to an unlawful source without the authorization of the copyright holders. It closed a systematic gap that had been left after the judgments in the Svensson and Bestwater cases since both were related to content that had been made available with the consent of the rights holder. After explaining the existing legal practice on hyperlinking， this article found two main issues in the existing EU case law. First， the rule established in the Svensson and Bestwater cases can be regarded as an implied obligation of website providers and internet users to carefully ensure that the materials they link to are not infringing when creating hyperlinks. This will be an invasion of the freedom of expression of the public on the internet. Second， the rule established in the GS Media case said that if providing a web link to make a profit， the provider should be expected to check whether the work they offer is legal. However， there are no clear rules for establishing when a hyperlinker is acting with a profit motive， and it is unreasonable for search engines to check whether hyperlinks are unauthorized. In addition， although the final version of the DSM Directive is better than previous drafts in some respects， this article still finds that there are two main shortcomings of Article 15 that relate to hyperlinking： 1） it might have a negative influence on smaller publishers， which will harm the diversity of cultural expression， and 2） it will limit freedom of expression and access to information for individual users. Since many of its terms are unclear， the extent of the harm will depend on how member states implement the directive. In this context， this article believes that the existing legislation provides over-protection of copyright holders， and the law should be modified to take sufficient account of the interests of the public， especially the interests of individual users and search engines （such as Google）. The final part of the article offers two main suggestions. First， rights holders must show that the hyperlink leads to infringement before they take action， giving more freedom to people to create hyperlinks. Second， direct and indirect liability should be distinguished， and the court should make the person who creates the hyperlink， rather than the website provider， directly responsible for the infringement. In addition， this article suggests that the CJEU balances copyright and the right to freedom of expression when processing hyperlinking cases. This article also believes that it is necessary to clearly stipulate when a hyperlinker is acting with a profit motive and exclude search engines from liability.
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歐盟版权指令第15条之评价与反思：以超链接规制为视角
梁蒙娜
（南京大学 法学院，南京210093）
摘 要：欧盟现有法律对于超链接的侵权管制过于严格，这种做法没有平衡公共利益和著作权人的利益，造成了对著作权的过度保护。虽然最终通过的《数字化单一市场著作权指令》第15条规定新闻出版媒体的邻接权规则不适用于超链接行为，但是这并未从根本上解决对超链接的著作权规制过严问题。为了促进互联网上信息的自由流通以及用户的表达自由，法官应当对超链接提供者与网络平台的侵权责任进行区分，并且仅在超链接导致侵权结果时对链接提供者进行追责。
关键词：超链接;向公众传播权;数字化单一市场著作权指令;著作权