Is linking communicating?

File-sharing sites such as the Pirate Bay which provide an index of searchable bit torrent files or some type of list or catalogue of links to massively copyright infringing content (whether for streaming or downloading) have raised the question whether the providers of these links are infringing the “communication to the public” right. In these cases there are two potential infringers 1) the person who has uploaded the work without the authorisation of the copyright owner (and the uploading is likely to infringe the reproduction right) and 2) the person who sets the link to the uploaded work. This article is concerned with the liability of the person setting the link.