EU copyright reforms should not permit systematic linking to infringing content, says UK government

Out-Law News | 28 Feb 2014 | 2:59 pm | 3 min. read

Copyright laws should not permit the systematic linking to content known to be infringing, the UK government has said.

In response (11-page / 97KB PDF) to a European Commission consultation on reforming the EU's copyright framework, the UK government said it backed a recent ruling by the Court of Justice of the EU (CJEU) which found that linking to material freely available elsewhere on the web is not an act of copyright infringement.

However, it said that laws should not allow website operators and others to link widely to infringing content.

"As a hyperlink is little more than a pointer to where content can be found, much like a reference in an index, it seems clear to the UK that mere provision of a hyperlink is not a communication to the public of that work," the UK's Intellectual Property Office (IPO) said. "As such, it should not be subject to the authorisation of right holders. The UK therefore welcomes the finding of the recent Svensson case... A requirement to seek permission for linking to copyright works would be excessively burdensome for users of the internet, including European businesses."

"However, it is important that the law supports efforts to tackle online copyright infringement, to which the UK remains committed. It is important for the interests of right holders that the law continues to forbid systematic provision of links that are known to lead to infringing content. In the UK this is done partly outside the copyright code, through fraud offences for example," it added.

The IPO also gave its opinion on another case which has yet to be ruled on by the CJEU which originates in the UK courts. It backed a view that is provisionally shared by the UK's Supreme Court on how an exception to copyright, which allows temporary copies of copyrighted content to be made without rights holders' permission, should apply in the context of website browsing.

"It seems clear to the UK that the making of temporary copies during the course of browsing (whether on the screen or in a cache) fall within [the temporary copying] exception," it said. "Right holders have the option of putting such content behind a paywall or applying other technological restrictions if they wish to control access to it."

The IPO also said it was opposed to the idea of the creation of a new mandatory register of copyrighted works. Whilst registry systems can "have a useful role in the identification and licensing of works", rights holders should not be obliged to use them, it said. It said that the UK's own 'Digital Copyright Hub', created to better facilitate licensing of works, was voluntary to use.

"Considerable infrastructure would be needed to support a single central register, and demand for such a register is unclear," the IPO added.

It also said that industry-developed standards, rather than those set by legislation, would help ensure copyrighted content is identifiable and accessible for use under licensing conditions.

"The EU should encourage development of strong, open standards for identifiers and other metadata," it said. "These standards should ideally reflect the information requirements of both licensors and licensees, including those licensing by means such as Creative Commons licences or the UK Government’s own Open Government Licence."

"The UK wants to see licensing based on linked rights information platforms, such as the UK’s business-led Copyright Hub, but sees this as most likely to develop by industry agreement. EU or Member State intervention may not be required. Indeed, the UK suggests that any prospect of legislation in this area may well impair rather than encourage the development of viable commercial platforms and standards," it said.

The IPO also said that it opposed the full harmonisation of rules on exceptions to copyright being set across the EU. "A degree of flexibility" should allow member states the freedom to introduce all or only some of the exceptions laid out in EU law. It said it was against any move towards "a completely open 'fair use' approach" to copyright.

EU copyright reforms should also leave member states free to avoid having to introduce a system of levies to account for private copying of copyrighted material, the IPO said.

"The UK considers that private copying levies in general are inefficient, burdensome to administer, and unfair to consumers," it said. "The UK does not have, and does not intend to introduce, private copying levies, and does not believe that full EU harmonisation of levy systems would be desirable. However it recognises that alignment of laws or procedures between Member States which do provide levies – such as a common approach to cross-border sales of levied products – could have benefits."

"Were such an objective to be pursued, it should not interfere with the right of Member States to provide alternatives to levy systems, including licences, taxes, and de minimis exceptions," it added.

Reforms to the UK's own copyright regime are set to come into effect in April.