The EU Court of Justice has ruled that website owners may, without the authorisation of copyright holders, redirect internet users, via hyperlinks, to protected works which are already freely available on another site (C-466/12 Svensson and Others v Retriever Sverige AB). This is the case even if the internet users who click on the link have the impression that the work is appearing on the site that contains the link.
However, if a link allows users to bypass technical measures restricting access to a site on which a copyrighted work appears, such as a paywall, then infringement may occur. The right which may be infringed in such circumstances is the right of the author to control the communication of their work to the public.
Linking plays an essential role in the day-to-day operation of the internet. This was highlighted in a recent report titled “Modernising Copyright” published by the Irish Copyright Review Committee which recommended that mere linking should not infringe copyright, except where the provider of the link knows or ought to be aware that the link connects with an infringing copy.
According to the Svensson case website owners that provide links to protected works without the permission of the copyright holder should ensure: (i) the protected work is freely available on another site; and (ii) the link does not allow users to bypass technical measures designed to restrict access to the copyrighted work.
The scope of what is “freely available” was not detailed by the ECJ in this case. For instance, it did not comment on how restrictive measures in website terms and conditions might impact on the availability of content i.e. where no technical measures are in place but where the website terms require authorisation for the creation of links to content. Should website operators assume that content not protected by technical measures will always be freely available? No doubt this point will be tested in time.