The use of hyperlinks may be considered as a trade-related copyright infringement under certain circumstances.
There are three types of hyperlinks: (1) deep linking: when a link redirects to another website where illegal works are hosted; (2) inline linking: when a link opens directly a file that contains a work; and (3) surface linking: when a link redirects to the home page of another website.
The first two types of links may be considered as an unauthorised use of works. In fact, in Mexico there is already a precedent in which our authorities determined a trade-related copyright infringement for the use of deep linking. The website that provides the links redirects to illegal websites that host works without the authorisation of the copyright or neighbouring rights holder.
Such activities are considered as an act of public communication of works by making them available to the public. So it becomes necessary to have the authorisation of the copyright or neighbouring rights holder to use works in such a way.
This trade-related copyright infringement may be confirmed by making the analysis, of such activities in light of the three-step test contained in the Berne Convention, which is the basis of every copyright exception:
- Certain special cases.
- Do not conflict with a normal exploitation of a work.
- Do not unreasonably prejudice the legitimate interests of the author.
Hyperlinking is not a special case of exception: it conflicts with the normal exploitation of the work since the use of the work does not consider any kind of remuneration to the copyright owner and it prejudices the legitimate interests of the author since the original authorisation to use the work was different (in most cases, the use is authorised by a restricted access).
Exceptions to hyperlinking may be legally applicable when the three-step test is duly completed.
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