Hyperlinking To Online-Radio Broadcasts

The relationship between hyperlinking and copyright is much debated. Although recent decisions of the ECJ have shed some light on the question, many questions still remain when hyperlinking to copyrighted content should be considered a copyright infringement. Some of these questions have been addressed by the Austrian Supreme Court in a recent judgment (Decision by the Supreme Court dated 23 February 2016, 4 Ob 249/15v).

The facts

The Plaintiff makes available several private radio channels on the internet via streaming. When accessing such channels via the Plaintiff's website or via its app, users are confronted with a pre-roll ad, on the basis of which the Plaintiff receives revenues. The Defendant provides hyperlinks to several digital radio streams, inter alia the Plaintiff's. When users click on such hyperlinks, they are confronted with an ad placed by the Defendant before the channel becomes audible. The Plaintiff's pre-roll ad is not visible anymore. The