Different Solutions for Similar Questions: Hyperlinks and the Right of Communication to the Public in China and the EU

摘要

The Chinese judiciary has taken a different approach to solving the problem of whether a hyperlink itself constitutes an act of communication of the content made accessible on a third-party website to the public under copyright law. In accordance with the overwhelming “server test”, hosting a link on a website that refers to another website containing a copyright work cannot truly be found liable for direct infringement of the right of communication to the public for the copyright work under Chinese copyright law, while, according to the arguable “new public” criterion in EU case law, the linker must require the consent of the right holder if the link addresses the linked-to work to a “new public”. Comparative reviews indicate that both jurisdictions share a criterion that the linker’s subjective knowledge and financial interests be taken into account when deciding whether the linker should be liable on the one hand and there is apparent divergence on the other hand. Chinese courts rely mainly on joint liability to burden linkers with a duty of care for infringement online, whilst the CJEU focuses on primary liability for infringement of the right of communication to the public under the EU legislation. When compared to the CJEU’s approach of combining the requirements for direct and indirect copyright liability, making a clear distinction between direct and indirect copyright liability in China appears more logical, but this is still being challenged in a number of contested situations.