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L'application du droit d'auteur aux hyperliens : analyse de droit français et de droit américain

Abstract : Copyright in France and in the United-States were created at a time when there was a merger between the immaterial work and the medium on which it was copied. Both legal systems therefore developed rights such as the reproduction right or the performance right which were the fruits of a confusion between these the immaterial work and the material medium.However, the invention of Internet and in particular of hyperlinks requires lawyers and lawmakers to rethink about these rights in a fully digital and immaterial world. It is therefore necessary to go back to the roots of copyright law which intended to create an artificial monopoly in the hands of copyright owners in order to incentivize them to create. Copyright is therefore a pillar of the right to culture which is grounded on the freedom of trade based on economic rights.Yet, hyperlinks creator also enjoy a freedom of trade. American end European lawmakers were concerned by the issue of the balance of interests between copyright owners and hyperlink creators, and they went as far as confering the latter a quasi-judge role on the internet. Since this would have created a risk of having service providers monitoring the internet both American and French laws maintained a judiciary control over the service providers.
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Mickaël Le Borloch. L'application du droit d'auteur aux hyperliens : analyse de droit français et de droit américain. Droit. Université Panthéon-Sorbonne - Paris I, 2016. Français. ⟨NNT : 2016PA01D069⟩. ⟨tel-01971722⟩

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