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European Court: Hyperlink to another website does not infringe EU copyright law if it does not override restrictions on access


The European Court of Justice has ruled that clickable hyperlinks to a protected work on another website does not infringe EU copyright law so long as all internet users have free access to the work. By contrast, any clickable links which circumvent restrictions on access will infringe EU copyright law by enabling a new public to access protected works.  While paywalls fall clearly within the scope of this limitation, websites that limit access to subscribers may also be protected even if there is no payment involved.

Background

The origins of the case lie in a dispute between a number of Swedish journalists and a reference site. Mr Svensson and the other journalists in the case write for a Swedish newspaper called Goteborgs-Posten.  Their articles are available for free to the public through the newspaper’s website.

The reference site, Retriever, provides its clients with lists of clickable internet links to articles published by other websites including those published by the journalists.  The journalists claimed that this conduct infringed EU copyright law by providing an unauthorized “communication to the public” of their protected works.  The Swedish courts referred the case to the European Court of Justice to determine whether this right prohibited linking to articles without the authors’ permission.

Ruling

In its preliminary ruling, the European Court of Justice recalled that two elements must be satisfied for the copyright of a communication to the public to be present: (i) the act of “communication” of a work protected by copyright and (ii) the communication of that work to the “public”.

In determining whether there has been an act of communication, the European Court of Justice recalled that it has given a broad meaning to this conduct and that it includes “making available” protected works to the public even if the public does not avail of this opportunity.  For example, in the Karen Murphy case, the European Court of Justice had found that the act of turning on a television in a bar constituted a “communication”.  Applying this rationale, the European Court of Justice ruled that “the provision, on a website, of clickable links to protected works must be considered to be … an act of communication”.

Next, the European Court of Justice assessed whether the provision of the clickable links is being made to the “public”.  The European Court of Justice ruled that the manager of the reference website, in providing links to the articles, was communicating those works to the public because they were accessible by “a large and indeterminate number of recipients”.

However, in a crucial passage, the European Court of Justice stated that the public must be a “new” one from that contemplated by the author of the protected work for there to be an infringement of the right of communication to the public.

The European Court of Justice held that there is “no new public” where the protected works are freely available to all internet users.  This applies, the European Court of Justice found, even if the protected work is provided on the reference site.

By contrast, there is a breach of the right of communication to the public where a clickable link makes it possible for users of the site on which that link appears to “circumvent restrictions put in place by the site on which the protected work appears in order to restrict access to that work to the latter site’s subscribers only”.  In such a scenario, the European Court of Justice found, the clickable links are giving access of the protected works to “a new public which was not taken into account by the copyright holders when they authorized the initial communication”.

Finally, the European Court of Justice ruled that the harmonization of the communication to the public copyright in the EU Copyright Directive prevented EU Member States from enacting national legislation which broadened the scope of protection under the right of communication to the public because this would lead to legal uncertainty and affect the functioning of the EU internal market.

Commentary

The European Court of Justice demonstrates once again the ever growing importance of the copyright of “communication to the public”.

On the one hand, the European Court of Justice has upheld the legality of a common internet service.    On the other, the European Court of Justice has expanded the meaning of communication to the public to include the provision of access to links where that overrides restrictions on access.

Clearly this means that providing clickable links which override paywalls is prohibited. But it may also mean that restrictions on content to non-paying subscribers are also be protected (especially as many websites depend on the personal data of their subscribers to generate revenues and advertising).

No doubt the extent to which the right of communication to the public now applies to clickable links will become the focus of much attention from search engines and content creators.

Benoît Keane is a specialist in European media law.  He recently wrote an article entitled “Ill Communication: The Concept of Communication to the Public in EU Copyright Law” published in the Entertainment Law Review (2013, Issue 5).    

 

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