The “www” at the start of a URL stands for the “world wide web”.  It is a web of inter-linked hypertext documents (web pages).  The references or links between those documents are known as “hyperlinks”.   This is probably so obvious to you that you don’t even notice it.  But what would happen if hyperlinks infringed copyright?

In a case that had potential for massive ramifications for internet users and publishers, the Court of Justice of the European Union (CJEU) was recently asked to consider whether providing a hyperlink to (non-infringing) copyright content on another website was an infringement of copyright by making that content available to the public.

Essentially, the CJEU found (preliminary ruling here) that where the hyperlink was to freely available content, there was a “communication to the public” of the copyright content.  However, this was not copyright infringement, since the communication was not directed at a “new public” when the original website was a freely accessible website.

Before delving more deeply into the decision, it is worth noting three things:

  • the original website was freely accessible to any internet user;
  • the original website did not contain any infringing content;
  • the question before the CJEU was communication not reproduction.  The hyperlink provided a link to the content on the original website and did not reproduce the content.

Our colleagues in Europe at King & Wood Mallesons SJ Berwin have also prepared an analysis of the Svensson decision, which you can access here.

The background to the CJEU case

The applicants, Mr Svensson, Mr Sjögren, Ms Sahlman and Ms Gadd were journalists, whose press articles were published and freely accessible on the Göteborgs-Posten news website.  Retriever Sverge operated a website that provides clients with clickable links to articles published on other websites, and this included the articles published on the Göteborgs-Posten website.

The applicants claimed that Retriever Sverge had infringed their copyright by making their works available to the public by providing hyperlinks.   Article 3(1) of Directive 2001/29/EC of the European Parliament provides that authors have the exclusive right to authorise or prohibit any communication to the public of their work, including the making available to the public of their works.   The Svea Court of Appeal referred a number of questions to the CJEU for a preliminary ruling.

The CJEU’s ruling on the main question of hyperlinking

The CJEU thought that the questions referred to it essentially boiled down to this: whether the provision of hyperlinks to copyright works is an act of “communication to the public” where the works on the original site were freely accessible.

The concept of “communication to the public”, according to the established EU cases, includes two elements: an act of “communication” and the communication to a “public”.  In the case of hyperlinks, the CJEU said that the provision of clickable links to protected works must be considered “making those works available” and therefore a communication. It said that a work is made available if the public can “access” it; it does not matter whether the public actually takes up that opportunity and follows the link.  The communication was to a public, the “public” referring to an indeterminate number of potential recipients and implies a fairly large number of people.

However, the CJEU noted that when the communication is of the same works as those covered by an initial communication, and when the communication is by the same technical means (ie a web page), to be “communication to the public”, the communication must also be directed to a new public.   A “new public” means the “public that was not taken into account by the copyright holders when they authorised the initial communication to the public”.  In this case, the public targeted by both websites was identical, being all internet users.

Other questions

What then if the public access was restricted, such as through a pay wall? The CJEU here said that if a link was provided that circumvented those restrictions (e.g. got around a pay wall), then the work is made available to a “new public”.  Therefore, circumventing site restrictions by way of hyperlink may be copyright infringement.   The CJEU said that this was the case in particular where the work was no longer available to the public on the original site, but was accessible by way of hyperlink on another site.

One of the other questions before the CJEU was whether it made a difference to the “communication to the public” question if the person that clicked on the hyperlink could not tell that they had been redirected to a new website.  The CJEU here found that it did not matter.  Even if the user was given a false impression that the work they had clicked on was from the hyperlinking website (not the initial website), there was still no “new public”.

Other questions to consider

We can think of a few further interesting questions that were not considered (or not raised) in the CJEU:

  • In relation to the “false impression” question, while this might not have mattered for copyright infringement purposes, there may be a question of whether there has been a “passing off” of content as belonging to the initial website, or whether such conduct was misleading or deceptive (under theAustralian Consumer Law).  
  • Would embedding the content fall inside or outside the scope of the decision?  When content is embedded, the content from the original website is shown or “framed” on the second website, but no copy is made.
  • Some websites have terms of access that state that hyperlinking is not permitted.  While those sites may be fully accessible to the public, would such a restriction have an effect on whether or not there was a “new public”?
  • What would be the outcome if the content on the initial website was infringing?  Would this be a “new public”.

How does the CJEU decision compare to the law in Australia?

In Australia, it is also an infringement of copyright to communicate a work to the public, and the definition of communication includes to “make available online”.  However, our legislation is not identical to the Directive.  An important difference between Australian case law and the EU is that Australian law has not developed, to the same extent, the concept of a “new public”.

Importantly, a hyperlink has been considered very differently under Australian law.  The hyperlink itself may not be seen to have “made available” or “communicated” a copyright work.   In Universal Music Australia v Cooper (2005) 150 FCR 1, Tamberlin J considered a website which allowed internet users to download sound records from remote websites by clicking on hyperlinks.  When a user clicked on the hyperlinks, a music file was transmitted directly to his or her computer from a remote server.   At least some of those music files were infringing copies.

The applicants argued that the sounds recordings had been “made available” through the hyperlinks displayed on the website. His Honour held that there had been no communication to the public from the website itself: “The evidence indicates that for present purposes there are no sound recordings located on the Cooper website. Therefore, there is not, and cannot, be any downloading or transmission of the recordings from the Cooper website” (at [60]).   Rather, Tamberlin J held that was the remote websites which “made available” the sound recordings and from which the digital music files were downloaded ([63]).

The role of a “hyperlink” and the “communication to the public” right was characterised as follows (at [65]-[66]):

“The Cooper website facilitates the easier location and selection of digital music files and specification to the remote website, from which the user can then download the files by clicking on the hyperlink on the Cooper website. However, the downloaded subject matter is not transmitted or made available from the Cooper website and nor does the downloading take place through the Cooper website. While the request that triggers the downloading is made from the Cooper website, it is the remote website which makes the music file available and not the Cooper website.

… Cooper cannot be said to have transmitted the sound recordings. In my view, the actual transmission of the music sound recording begins with the commencement of the downloading of the recording from the remote website on which the recording is located to the end user. I accept that the electronic transmission of the sound recording to a user who triggers the hyperlink on the Cooper website is a communication to a member of the public from the remote website, however, it is not a transmission from the Cooper website.”

However, this was not a “get out of jail free” card for Mr Cooper. On appeal, the question before the Full Court was whether Mr Cooper had authorised copyright infringement.  The Court found that by the provision of hyperlinks on his website (“mp3s4free.net”) Mr Cooper had authorised the primary copyright infringements of others. The question of whether the hyperlinks themselves were a primary infringement was not considered on appeal to the Full Court.

A final question

The CJEU in Svensson and the Federal Court of Australia in Cooper may have reached the same outcome (the provision of hyperlinks is not “communication to the public”), but they did so through significantly different reasoning and different applicable principles.  Which is more robust and adaptable?    Of course, being Australian, we are biased, so we will let you be the judge.