Hyperlinking to a website containing copyrighted material is not an infringement of copyright, according to a recent decision from the European Court of Justice.
Hyperlinking and IP
Hyperlinking is a mechanism to direct web-browsers from one web page to another. A few years ago, the Canadian Supreme Court decided that to hyperlink to a defamation was not defamatory (see Chapman Tripp commentary here).
The issue before the European Court1 was whether it is an infringement of copyright protection to hyperlink to protected material, without the consent of the copyright holder.
Swedish company, Retriever Sverige, provides users of its website with hyperlinks which direct them to copyright protected articles published on other websites2 and was being sued by journalists from the Goteborgs-Posten news site for copyright infringement.
The journalists, concerned that users who clicked on the hyperlinks would not realise they had been directed to another site, claimed Retriever Sverige was infringing on their exclusive right to make their works available to the public. Retriever Sverige said its website merely indicated to its clients where the works could be found.
The dispute reflects the tensions between freedom of communication and protection of IP rights in an information society.
The Court’s ruling
The Court distinguished between information that is “freely accessible” and information that is restricted. If website A’s hyperlinks to website B provide access to people who were not intended to have access by the original authors (website B), then website A is communicating to a “new” public and must first obtain authorisation from the copyright owner.
But in the case in question, the information on website B was “freely accessible” to the public at large, so no permission was needed. It did not matter that the user may not realise he or she had been redirected to another site.3
Website A would only ever need authorisation if the hyperlink allowed users to circumvent restrictions put in place by Website B4 - for example, subscribers’ only material.
Chapman Tripp comments
The Court wanted to restrict Member States’ ability to give wider protection to copyright owners.5
In some ways, this is a pragmatic decision which reflects the reality that having disseminated information to the world at large without restriction, intellectual property rights are not the answer to reclaim the content. The decision will be welcomed as confirming it is business as usual for search engines and news aggregators.
On the other hand, some website owners may prefer the public to access their home page because of advertising revenue arrangements. The decision may therefore incentivise website owners to put up barriers such as a pay wall or technological barriers to prevent “deep” hyperlinking (to a particular page within the site, rather than the home page).
For our part, we have little difficulty with the EU approach as a matter of IP law. Hyperlinking is referencing, not reproduction and is a far cry from actual piracy.
We would expect a similar outcome here.