CJEU steers hyperlinks clear of copyright protection
Europe’s highest court has said website owners can hyperlink to “freely accessible” copyrighted material without seeking rights holders’ permission.
The Court of Justice of the European Union (CJEU), in its ruling on Thursday, cleared Swedish company Retriever Sverige to re-direct its customers to articles published by several Swedish journalists.
Retriever Sverige, a media monitoring company, provided links to those articles, which were published freely on the Göteborgs-Posten newspaper website, without seeking the journalists’ permission.
After the journalists took legal action, the Svea hovrätt (Svea Court of Appeal) in Sweden asked the CJEU to clarify whether providing such links constitutes an “act of communication” to the public under EU law. If so, the journalists would have to authorise those links.
The CJEU found that providing hyperlinks does constitute an act of communication to the public but that, according to case law, the communication must be directed to a “new” public to afford rights owners protection.
“That is to say, at a public that was not taken into account by the copyright holders when they authorised the initial communication to the public,” said the court.
In this case, the court found, there is no “new” public because the articles on the Göteborgs-Posten site were freely accessible. Therefore, it said, users of the Retriever Sverige service are part of a public “already taken into account” when the articles were published.
That finding still holds when Internet users who click on a hyperlink think that the work appears on the site of Retriever Sverige, not the original site of Göteborgs-Posten, said the court.
The court added a caveat to its ruling – a “new” public does exist when, by clicking a hyperlink, Internet users can circumvent systems on a site that restrict copyrighted works to the site’s subscribers.
Finally, the court ruled, EU member states cannot give copyright holders wider protection by broadening the concept of “communication to the public”, as it would create legislative differences and legal uncertainty.
Adam Rendle, associate at Taylor Wessing LLP in London, said it was a “pragmatic judgment” that confirmed the wider view that if something is freely accessible, a hyperlink is not infringing.
“The battleground now is determining what constitutes ‘freely accessible’,” he said.
“A question that may arise is what happens in a situation where work is freely accessible, for example on a video-streaming website, but the form it is available in is infringing copyright. Does that mean you are communicating work to a new public?”
He added: “This is good news for any aggregator, search engine or website that links to content”, noting that news portals across the world already link to content elsewhere.
One consequence of the CJEU ruling, said Rendle, could be an increase of rights holders’ content appearing behind a pay wall, particularly if revenues were gained through people accessing content through a home page.
“Some rights owners may prefer the public to access via a home page, perhaps for advertising revenue,” said Rendle.
“If rights owners perceive that using a hyperlink causes problems in how people arrive at their content in the first case, we may see barriers going up, but that is also a business decision.”
Myles Jelf, partner at Bristows LLP in London, also said rights holders may become more “prescriptive” about which websites they give authorisation for their content to appear on.
“At the top level, the judgment is quite reassuring as it shows hyperlinks as simply references. Provided the article is already out there, and the rights owner has agreed to that, you are not exposing it to a new public.”
However, Jelf added, website owners may also take an “extra degree of caution” with what they link to.
“The question of whether a link is a communication is resolved but, even if material is being exposed to a new public there may well still be legitimate reasons that would allow it, such as the fair use doctrine.”
