Regulating hyperlinks under copyright law in China : dilemma, experience, and solution

Abstract

The making available right, also known as the right of communication of works on information networks in China, represents a fundamental aspect of modern copyright law. This right grants creators and copyright holders the exclusive authority to control the online dissemination of their works to the public in interactive manners. However, a significant challenge to robust digital copyright protection has garnered global attention: the contentious issue of determining liability for posting inline links, a special type of hyperlink, to copyrighted works under copyright law. In China, this issue raises the question of whether using inline links constitutes direct infringement on the right of communication of works on information networks. This question has persisted for around two decades, not only in China but also across other major jurisdictions such as the EU and the US, and remains unresolved. To address the copyright issue raised by inline links, it is necessary to untangle the confusion between inline links and other types of hyperlinks (normal referencing links), as this confusion has led to misunderstanding and misapplication of statutes. It is argued that normal referencing links, akin to signposts on the internet, facilitate the retrieval of information and typically fall under the safe harbor principle, protecting link providers from direct liability for copyright infringement. Conversely, inline links, which embed or display copyrighted content directly, often function more like content providers and may incur direct liability. Therefore, the internet service provider exemption shall not apply to inline link cases. Following this argument, this research focuses on seeking a regulatory approach to inline links under copyright law in China. Influenced by the broader issue of legal lag and the principle of technological neutrality, a regulatory gap exists in both international treaties (such as the Berne Convention and the WIPO Copyright Treaty) and national laws (including those of China, the US, and the EU), resulting in a lack of clear guidance. Consequently, Chinese judicial decisions exhibit significant inconsistency regarding infringement. Various judicial standards for determining copyright infringement related to inline links have been developed in Chinese jurisprudence and academia, including the Server Test and numerous tests that are sharply opposed to it (non-Server Tests). It is first argued that the non-Server Tests present homogeneity and that raising new tests may not be the correct approach to solving the problem. The research also critiques the Server Test for its potential to incentivize technical evasion and create legal ambiguities, while also scrutinizing non-Server Tests for potentially overreaching and impeding public access. The New Public Test, developed through the case law of the Court of Justice of the European Union, is advocated as a more balanced approach, aligning with empirical findings from Chinese cases that suggest a similar judicial tendency. The New Public Test, which is deeply rooted in the legal policy of copyright law, effectively respects copyright holders’ dissemination intentions and adapts to evolving digital communication methods. However, it also faces challenges, particularly in clarifying the intended scope of communication and keeping potential link providers informed of this scope. In light of the demerits of the New Public Test, this research proposes a binary framework for regulating inline links, incorporating insights from US, EU, and Chinese legal contexts. This framework emphasizes both the link provider’s intent to infringe—volition—and the copyright holder’s communication intentions regarding whether and how to disseminate their copyrighted works online, as mandated by the New Public Test, to establish the liability of inline link providers. The two concepts are closely related in the proposed framework: Acting with certain knowledge that copyright holders do not welcome inline links makes the act of posting the link more volitional, thereby triggering direct liability. The proposed framework aims to mitigate the rigidity of the New Public Test while fostering a better equilibrium between copyright protection and information dissemination on the Internet. This proposal can be implemented in China through legislation, judicial interpretations of current rules, and industry’s efforts to facilitate copyright holders’ expressions of communication intentions.