Solving hyperlinking dilemma in copyright law by intention: Comparative perspectives

Abstract This article proposes a binary framework for regulating inline links, as opposed to normal referencing links, in copyright law. On the one hand, it requires that link provider's volition, defined as willfulness or intentionality, play a role in establishing direct infringement in circumstances of inline linking. This concept has been consistently emphasized across doctrines, judicial decisions, and scholarly commentary in the US, EU, and China. On the other hand, it underlines the importance of respecting the copyright holder's intention regarding whether, to what extent, and how their works should be communicated—an idea that lies at the core of the CJEU's “new public” test. The two elements are logically related: when copyright holders clearly express their communication intentions, link providers gain awareness of whether their linking would contravene those intentions, thereby rendering their actions volitional. By bridging these two elements, the framework proposes that copyright holders be required to publicly declare their intentions concerning the scope of communication. Both concepts operate along a spectrum: the more obviously and explicitly the copyright holder expresses their communication intentions, the more volitional and willful the link provider's act is deemed. Linking in violation of technical measures, or with actual or constructive knowledge of infringement, represents one extreme; linking in violation of special legal measures occupies the middle ground; and linking in violation of ordinary legal measures represents the other extreme. This proposed framework seeks to address the rigidity of the new public test and aims to strike a balance between digital copyright protection and the free flow of information on the Internet facilitated by inline links.