The Court of Justice of the European Union (CJEU) has confirmed that providing hyperlinks to works freely accessible on the internet is not a communication to the public of copyright works. This is so even where the works are “framed” on the linking website, in other words displayed in a way which gives the impression that the copyright works are part of the website providing the link.
Article 3(1) of Directive 2001/29/EC (the “InfoSoc Directive”) provides that the author of a copyright protected work has the exclusive right to authorise or prohibit the “communication to the public” of that work.
The CJEU’s decision came in response to four questions posed by the Swedish Court of Appeal. The questions and answers can be summarised as follows:
- If anyone other than the copyright holder of a work supplies a hyperlink to the work on their website, does that constitute “communication to the public”?
Providing a hyperlink is an act of communication. Whether it is communicated to the “public” is answered in question 2:
- Is the assessment under question 1 affected if the protected work is on a restricted website?
In order to be a communication to the “public” the hyperlink must be directed at a “new public”, that is, people not taken into account by the copyright holder when they authorised the initial publication. Let’s say people have to pay to access the website where the copyright work was initially published. If the linking website provides a hyperlink to material on that site without having to pay, then those people would constitute a “new public” and the hyperlinking would infringe.
There is no new public where the linking website provides hyperlinks to material on freely accessible third-party websites. Here the linking website users are already considered to be users of the third-party websites and therefore “taken into account” by the copyright holder.
- Does it matter if the copyright material is “framed” on the linking website?
- Is it possible for an EU Member State to give wider protection to copyright holders by enabling “communication to the public” to cover a greater range of acts than provided for in Article 3(1)?
No. This would undermine the harmonising objective of the InfoSoc Directive.
The decision will favour aggregation sites which allow access to freely accessible material or use hyperlinks as references. It will be of concern to copyright holders who cannot control how internet users access their works when those works are freely accessible online.
The meaning of “new public” is likely to cause difficulty. If it is simply a question of whether or not material is, in fact, freely accessible, this is relatively easy to work out. Subscription only sites, for example, clearly mean that the material is not “freely accessible” such that linking to this material will be communication to a new public. However, the meaning of a public “contemplated” or “taken into account” by the copyright owner is not so clear. Will a requirement to register (without paying) to access a site mean the material on that site is not “freely available”? The Court did not address this.
It is also unclear whether a linking site will be liable for taking users to content which is freely accessible, but which was initially made available without the authorisation of the copyright holder.
We anticipate further litigation and CJEU decisions on these points. In the meantime linking sites can take some comfort in the decision but must be aware that hyperlinking can still infringe copyright.