Infringement through hyperlinking requires new kid on the block
The counterparts of normally harmless actions can infringe copyright when performed on the internet. Giving an address of a location where one might see certain images, for example, is generally harmless in real life. On the Internet, however, it can be like opening Pandora’s box.
Sharing an address on the internet is hyperlinking. A more advanced form of hyperlinking is embedding, which is basically the same except that the viewer does not have to click a link: the target website is loaded inside the host website and both can be viewed at the same time. Hyperlinking and embedding are generally harmless. When the given address concerns copyrighted material, however, things change.
In a recent preliminary ruling, the Court of Justice of the European Union (CJEU) looked into a case referred to it by the Svea Court of Appeal into whether hyperlinking and embedding should be considered as acts of communication to the public, as mentioned in Article 3 of the European Copyright Directive. The case involved a number of Swedish journalists (Svensson et al) and Retriever Sverige, a company that provides links to online articles in which the journalists own the copyright.
The CJEU splits the concept of communication to the public into two criteria: ‘the act of communication’, and ‘the public’. It considers that the requirement of communication is easily fulfilled—merely putting a link on a website is sufficient. Whether the link is used is irrelevant.
Where it concerns ‘the public’, the CJEU considers that infringement requires a new public. This means “a public that was not taken into account by the copyright holders when they authorised the initial communication to the public”.
Practically speaking this means if the website with the copyrighted content is freely accessible, the author’s intended public is everyone. Thus the public clicking the link that refers to this website (or content) cannot be considered ‘new’, because the target website was freely accessible and therefore the link-clickers are the intended public. However, it is considered infringing when the link circumvents an accessibility restriction to the content. In this case the public clicking the link is considered to be a new kid on the block, since without the link the content would have been inaccessible.
In November 2013, the Appellate Court of Amsterdam ruled similarly. The case concerned www.geenstijl.nl, a website that hyperlinked to unpublished photographs, which were to be printed in a magazine published by Sanoma. The court did not speak of ‘new public’, but it considered that the website did not provide a new channel of accessing the photos by sharing a link to already accessible content. From this point of view, infringement was not assumed. Although the approach is slightly different from that of the CJEU (focusing on providing an access channel instead of the author’s intended public), the results are similar.
On the surface, the CJEU’s judgment is clear, and seems to define legal hyperlinking. But things are not what they seem, as the judgment has loose ends.
The CJEU speaks, for example, of authors when they authorised the initial communication to the public. But what of the scenario, as in the Dutch case, where no authorisation was ever given to put the content online? It would seem that in this case the public is always ‘new’ as the author has never given permission and thus never intended the public to see his or her work. But the ‘linker’ cannot always know if he or she provides a link to legal or illegal content, so this seems unreasonable.
"Practically speaking this means if the website with the copyrighted content is freely accessible, the author’s intended public is everyone."
The CJEU also seems to suggest that hyperlinking and embedding are interchangeable concepts. But embedding allows for partial communication of copyrighted content. Imagine for instance an image with explanatory text next to it. Through embedding, it is possible to only show the image. It can be argued that this creates a different viewing ‘experience’, and thereby a new public for the image. A Dutch copyright protection organisation, Buma/Stemra, does not seem to agree, however, as it recently lifted its ‘embedding tax’ as a result of the preliminary ruling.
According to the CJEU, with a new kid on the block, hyperlinking and embedding are infringing. But the judgment requires refinement. The CJEU has not called on the Advocate General’s opinion, and it shows.
There are several scenarios that require a deeper understanding and more research into the relationships between hyperlinking, embedding and communication to the public.
Michiel Rijsdijk is a partner at Arnold + Siedsma. He can be contacted at: mrijsdijk@arnold-siedsma.com
