"Making available" and hyperlinks: the ALAI position

Not the least interesting feature of the Report and Opinion on the making available and communication to the public in the internet environment – focus on linking techniques on the Internet, a ten-page document produced by ALAI, is the fact that it was adopted unanimously by ALAI's Executive Committee back on 16 September, and you don't need to be an expert on copyright to know how difficult it is to get copyright experts to agree anything unanimously in this notoriously fissiparous branch of intellectual property.

The content of this Report and Opinion can be fairly appreciated from its Executive Summary, which reads as follows (with hyperlinks added):

"The exclusive right of “making available” under the WCT and the implementing EU legislation covers the offering to the public of a work for individualized streaming or downloading; in addition, where it takes place, the actual transmission of a work to members of the public also is covered, both irrespective of the technical means used for making available. In essence, what matters is that the act (i) is performed by an individual person (ii) directly or indirectly has the distinct effect of addressing the public, irrespective of the tool used by the individual, and (iii) concerns subject matter protected by copyright or related rights.

As applied to hyperlinks, these findings lead to the following conclusions: (i) The making available right covers links that enable members of the public to access specific protected material; (ii) the making available right does not cover links that merely refer to a source from which a work may subsequently be accessed.

It is irrelevant whether the link takes the user to specific content on a third-party website, or whether the linking site retains a frame around the content, so that the user is not aware that she is accessing the content from a third-party website.

It is also irrelevant to the act of offering access whether the work made available through the link is itself infringing: it is the act of offering that triggers the making available right, and that act is the same whatever the copyright status of the work that is made available.

There is obviously no infringement of the “making available” right where the rightholder's decision whether and under which conditions the targeted content is made available on the internet is respected. In contrast, this means in particular that linking to targeted content infringes the “making available” right if (i) the content is initially made available without the rightholder’s consent, or (ii) technical protection measures have been circumvented or (iii) the availability of the content, even if initially disclosed over the Internet with consent, otherwise clashes with the declared or clearly implied will of the rightholder.

Accordingly, courts should not introduce a general presumption of the rightholder’s consent to further communication to the public of what initially has been posted on the Internet with the rightholder’s consent, since this would amount to introducing an exception or limitation to the right, while general exceptions to the scope of the “making available” right require legislative action. This finding does not exclude that a court may be inclined to infer such consent to permit the link based on the individual circumstances of a case".

The Report and Opinion is a thoughtful and carefully drafted document, which focuses closely on the current case law of the Court of Justice of the European Union as well as on the position in some EU Member States. For anyone seeking to appreciate the background and sources relating to the current debate over the "making available" right in Europe as it applies to hyperlinks, this paper provides a clear and helpful explanation.