The Court of Justice of the European Union ruled today on the lawfulness or otherwise of using hyperlinks to copyright works published by others online. The CJEU has answered questions on EU copyright law under the Infosoc Directive (2001/29) referred to it by the Svea Court of Appeal in Sweden in a case concerning paid-for links produced for its subscribers by the defendant media monitoring and search business (Retreiver Sverige AB) to news articles written by journalists (including Mr Svensson, the lead claimant) and originally published in print and online by Swedish newspapers. Full judgment available here.
Common forms of hyperlinking: reference linking and framing
The CJEU has, in effect, said that it is not an infringement of a copyright owner’s “communication right” in relation to a copyright work to supply a clickable link (hyperlink) to that work, even if the copyright work is displayed in a way which gives the user the impression that the work is appearing on the linker’s own website (a practice commonly referred to as “framing”).
But this is only the case if the link is to the copyright work published with the copyright owner’s consent and only if it is available on a website which is freely accessible by anyone.
In these circumstances there is no communication of that work to a “new public”. In other words, such links provide access to the same class of users that the copyright owner had in mind when authorising the initial communication of the work.
This aspect of the CJEU’s ruling gives rise to considerable concerns, because it seems to imply that the mere provision (without more) of a link to a copyright work which is on another website without the copyright owner’s consent can give rise to liability for infringement.
Hyperlinking that circumvents restrictions does infringe copyright
If a link permits users to circumvent restrictions put in place by the copyright owner to regulate access to the copyright work, then that will infringe. This is because the users using that link are a “new public”, meaning they were not taken into account as the potential class of users when the copyright owner authorised the initial communication of the work.
In Svensson, the CJEU dispensed with the need for an Opinion prior to judgment from an Advocate General, usually a sign that the court regards the fundamental principles to have been adequately laid down in its earlier rulings. It is far from clear that this was the case here.
Nevertheless, one existing principle which the Court clearly confirmed is that, where there is a communication to the public which does not use different technical means to the original communication, it is necessary to show that the communication is to a “new public”.
Where the Court has gone further than in previous judgments, is in its finding that mere hyperlinking itself amounts to a communication. As noted above, the implication of this seems to be that if a link is provided to content that is not freely available online, with the copyright holder’s consent, the provider of that link may themselves be infringing.
There has been considerable concern amongst commentators in the run-up to today’s decision that the outcome could result in EU copyright law completely putting the brakes on the most common uses of internet hyperlinks for sharing information, collaborative working and dissemination of free speech. That will not happen. However, the decision does mean that providers of links do risk infringing copyright themselves if they provide a link to content which is already infringing. There is now likely to be a flurry of references from national courts to the CJEU seeking clarification on when a provider of a link can be held liable in circumstances where a link is provided to infringing content inadvertently or without knowledge that the content is itself an infringement. The introduction of this new uncertainty is unfortunate, to say the least, and will present practical difficulties for businesses (and individual internet users) who wish to operate lawfully.