Hyperlinks citations, reproducing original works

A hyperlink (or simply a link) is a citation of an electronic address where further information can be found but, additionally, navigates the surfer almost instantaneously to material hosted anywhere on the Internet at a mere click of a mouse. Controversy arises because either the composition or functionality of the hyperlink can potentially infringe property rights of the claimant. Many have written about the hyperlink as a navigation tool authorising or contributing to infringement of copyright by a third party.¹This article concentrates on the composition of an external hyperlink, as a citation. Part 2 outlines the nature of Internet communication and explains why hyperlinks are often controversial. Part 3 asserts when copyright subsists in original literary works, but because a hyperlink may incorporate diverse formats, this part also addresses the protection of other works including the issue of composite works covered under section 1(1) of Copyright, Design and Patents Act, 1988. Applying copyright principles, it suggests that a hyperlink reproducing an identifiable part of a web page capable of standing apart from its context can infringe copyright in the web page containing the part. That said the claimant might face difficulty in demonstrating that the work is substantive or, where the hyperlink consists of diverse inputs, in categorising the subject matter. Part 4 acknowledges the significance (electronic) collections and therefore defines a database falling within the Databases Directive.² It then highlights challenges presented by copyright and sui generis right relating to databases concluding that reproducing an identifiable part of author compiled work can infringe copyright and/or sui generis right therein but the same is not true of search engine generated returns. Part 5 concedes that, in practice, subsistence of copyright and/or sui generis right is open to challenge because the part reproduced in a hyperlink may not be substantive, may not easily fit into the category of protected subject matter or lacks ‘substantial investment.’ Nevertheless, it argues that proving infringement in an identifiable part of a web page reproduced in a hyperlink remains the most viable option for indirectly controlling access to the target page, which may itself be unprotected by copyright.