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 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 Plaintiff explicitly objected to the Defendant's hyperlinks.
Based on the neighboring rights in the streams and on unfair competition law, the Plaintiff requested, inter alia an injunction in order to stop this practice.
After clarifying certain aspects relating to the scope of the neighboring rights of broadcasting organisations (under Austrian law), the Supreme Court addressed the question of whether the hyperlinks implemented by the Defendant should be considered communications to the public that require the right holder's consent. The court held that the explicit objection by the Plaintiff did not render the links unlawful. However, it decided that the Defendant, through its links, circumvented specific factual requirements created by the Plaintiff to access the streams, namely that the users have to endure a pre-roll ad placed by the Plaintiff, before being able to access the stream. The Supreme Court held that the Defendant thereby communicated the broadcasts to a new public and therefore infringed the Plaintiff's exclusive broadcasting right.
As the Supreme Court granted the requested remedy on the basis of the Austrian Copyright Act, it did not have to assess whether the Defendant's conduct (also) was an unfair commercial practice ("free riding").
The Supreme Court's reasoning is based on recent case law of the ECJ: In C-466/12, Svensson, the ECJ held that Article 3 (1) InfoSoc Directive stipulates that the provision on a website of clickable links to works freely available on another website, does not constitute an ‘act of communication to the public’, as no ‘new public’ is addressed. On the other hand, a clickable link that makes it possible to circumvent restrictions put in place by the site on which the protected work appears in order to restrict public access to that work to the site’s subscribers only, would communicate the content to a ‘new public’, which was not taken into account by the copyright holders when they authorised the initial communication. The right holders’ authorisation is required for such a communication to the public.
The Supreme Court considers the fact that visitors to the Plaintiff's website had to ‘endure’ a pre-roll ad comparable to the situation mentioned by the ECJ in the Svensson-decision, namely the circumvention of restrictions put in place in order to restrict public access to that work to the site’s subscribers only. Whether these situations are comparable from a legal perspective is questionable: A hyperlink circumventing a factual restriction placed on the website (eg password protected access to content for subscribers only) is making such content available also to a public not taken into account by the right holders when they authorised the initial communication. In the case at hand, access to the initial communication was not restricted to a predetermined group (subscribers), but the general public had access to such content. They simply had to ‘endure’ a pre-roll ad each time they wanted to listen to the content. Accordingly, in the present case, the right holder has taken the general public into account when arranging for the initial communication. This difference might have justified a different assessment (under copyright law), but would in any case have justified another referral to the ECJ.