This article evaluates the interpretation of the right of communication to the public, as per Art. 3(1) of Directive 2001/29/EC (the InfoSoc Directive), within the context of hyperlinking on the internet undertaken by the Court of Justice of the European Union (CJEU) in its case law over the last years on EU level as well as by the Federal Court of Justice in Germany (BGH). In order to determine how the interpretation – in particular the development of the new public criterion by the CJEU – influences the interests of authors and users, and the functioning of the internet, an in-depth analysis of the case law of the CJEU and the BGH is conducted. Thereby, the conditions under which the setting of a hyperlink infringes the right of communication under Art. 3(1) of the InfoSoc Directive are outlined. In this framework, the influence of the CJEU on the jurisprudence of the BGH is discussed. Ultimately, this article assesses the extent to which CJEU case law has given rise to alternative proposals regarding the treatment of hyperlinks, discussing both challenges and endorsements.
