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Linking to this article is permitted
On 13 February 2014, the Court of Justice of the European Union (CJEU) gave its judgment in the case of Nils Svensson and Others v Retriever Sverige AB1. A request for a ruling had been made by the Swedish courts in relation to the interpretation of an aspect of EU copyright law2 (which has been implemented into UK law3 as well as Swedish law).
The case concerned a website which contained hyperlinks to news articles on another party’s website. The key issue was whether a hyperlink to an article could constitute a ‘communication to the public’ under copyright law, which would mean an unauthorised hyperlink could infringe copyright in the article.
Copyright protection
An original article (such as this article which you are reading) attracts copyright protection as a ‘literary work’. Certain actions relating to such an article may only be undertaken by or with the authorisation of the copyright holder. Direct copying is one such action. Another is ‘communication to the public’. This means that if there is an unauthorised communication to the public of an article protected by copyright, this will constitute an infringement of that copyright.Meaning of ‘communication to the public’
Assistance with interpretation of the term ‘communication to the public’ is provided within copyright legislation and within case law. EU and UK legislation provides that communication to the public includes: “the making available to the public of the work by electronic transmission in such a way that members of the public may access it from a place and at a time individually chosen by them”.
The court in the Svensson case considered the two key elements: (1) an act of communication (making the work available for access); and (2) such communication must be to the public.
In considering (1), it is sufficient that people ‘may’ access the work, whether or not they actually do so. The CJEU held, therefore, that providing a hyperlink which, if clicked, gives access to a copyright protected work was ‘an act of communication’.
In considering (2), case law has held that the ‘public’ refers to “an indeterminate number of potential recipients and implies, moreover, a fairly large number of persons”. All potential users of a (freely accessible) website clearly meet this criterion.
Therefore, the provision of a hyperlink on a website to a copyright protected article does constitute a communication to the public.
However, previous case law has considered the situation where there is a communication to the public of a work by the same technical means as a prior authorised communication of that work to the public. In this situation, a new authorisation of the copyright owner is only required if the ‘public’ concerned is 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”.
Huh? Does this mean a hyperlink infringes copyright or not?
The Svensson case concluded that if the website on which the full article is published (with authority of the copyright holder) is freely available to internet users, and the website on which the hyperlink is displayed is also freely available, then they are both aimed at the same public. Therefore, the communication via the link is not to a ‘new public’, meaning there is no need for a new authorisation and therefore there is no copyright infringement in providing a link without specific permission.
This must be compared with the situation where access to the full article on the website on which it appears is restricted to certain people (for example subscription-only access), and the link circumvents the restriction and provides free access to the article to all internet users. In this context, the article accessed via the link is available to a different set of people to those ‘taken into account’ in the publication of the full article. Therefore, the communication via the link is to a ‘new public’ and, without further authorisation, may constitute copyright infringement.
The good news and the bad news
The Svensson decision provides some relief that the extremely widespread practice of linking to third party websites does not necessarily rely on obtaining specific permission to do so.
However, it does not mean that everyone is now free to do as they please when it comes to linking, or using ‘freely accessible’ news articles or other content. A few initial thoughts on this:
- ‘Communication to the public’ is only one act which can constitute copyright infringement of an article or other work. Direct copying must not be forgotten. If an article is freely available on a website, copying & pasting that article onto another website (rather than linking to it) is still an act of copyright infringement unless permission is obtained.
- The determination of whether there is a ‘new public’ created by a link will not always be clear-cut, and relative accessibilities of websites (and any subsequent changes to accessibility) need to be considered in context. See also next bullet point.
- The terms of use or copyright terms on a website may contain provisions on linking or permitted use of articles and other material. If the party wishing to link to an article is bound by these terms4, it may be subject to contractual restrictions on the type or extent of linking. Further, it will need to consider whether the availability of the article via the link goes beyond that ‘taken into account’ by the copyright holder in the authorisation within the scope of its terms (and therefore whether a ‘new public’ is created).
- If an article has been published without authorisation (such that it infringes someone else’s copyright), the act of linking to that article could constitute an unauthorised ‘communication to the public’ and therefore also copyright infringement.
The Svensson judgment is important for website operators, copyright owners and others linking to third party content (such as through social media), who will need to assess its impact on the risks involved in their current practices. Changes to the way in which content is protected, used or linked to should be considered. In the meantime, please feel free to link to this article on OBEP’s website at: www.obep.co.uk.
Olivia Whitcroft, principal of OBEP, 4 March 2014
1 Case C-466/12
2 Directive 2001/29/EC
3 Copyright, Designs and Patents Act 1988
4 Enforceability of website terms is a tricky topic for another article...
This article provides general information on the subject matter and is not intended to be relied upon as legal advice. If you would like to discuss this topic, please contact Olivia Whitcroft using the contact details set out here: Contact Details
