Out-Law News 3 min. read

Hyperlinking should not infringe copyright, say academics

Posting a link to copyrighted content should not be regarded as a communication of that work to the public, a group of leading academics has said.

The European Copyright Society (ESC) said that the act of hyperlinking to copyrighted content (18-page / 179KB PDF) without permission should not be considered to constitute outright copyright infringement.

Under EU copyright laws, authors have the exclusive right to control the "communication to the public of their works" and "the making available to the public" of their works, whilst performers, producers and others also have exclusive right to control the "making available to the public" of their works. It is generally an infringement of those rights if others communicate or make available content without permission from rights holders to do so.

In non-binding recitals under EU copyright law the rights around the 'communication to the public' are said to "cover any such transmission or retransmission of a work to the public by wire or wireless means, including broadcasting" and "should not cover any other acts".

The Court of Justice of the European Union (CJEU) has been asked to provide a ruling on how that EU law applies in the case of hyperlinks. A Swedish court has asked whether the supply of a "clickable link" to an authors' work by non-rights holders should "constitute communication to the public" within the meaning of EU law. The Swedish court has also asked whether the answer to that question changes if access to the content is restricted in some way or by the way the content is displayed after a link is clicked on.

In an opinion on how the CJEU should rule, the ESC urged the Court not to consider hyperlinking as a communication of copyrighted content to the public.

"Clearly, hyperlinking involves some sort of act – an intervention," the European Copyright Society said. "But it is not, for that reason alone, an act of communication. This is because there is no transmission. The act of communication rather is to be understood as equivalent to electronic 'transmission' of the work, or placing the work into an electronic network or system from which it can be accessed. This is because hyperlinks do not transmit a work, (to which they link) they merely provide the viewer with information as to the location of a page that the user can choose to access or not. There is thus no communication of the work."

The academics said that even if the CJEU rules that a "transmission is not necessary for there to be a 'communication'", it should still refrain from ruling that the posting of a hyperlink is a communication 'of a work'.

"Whatever a hyperlink provides, it is not 'of a work'," the ESC said. "A hyperlink does not provide the technical possibility of access to a work that is not otherwise accessible".

Because content rights holders post on the internet is generally accessible to everyone and because the notion of 'the public' in that context is "universal", the CJEU should also not determine that hyperlinking is a communication to people they had not intended have access to the material – a "new public", the ESC said. 

Amongst its other views the ESC said that the CJEU should generally uphold that hyperlinking does not constitute a communication to the public of copyrighted content regardless of the 'framing' given to the content when it appears after a hyperlink has been clicked on.

"In so far as there might be technical differences in some cases where the work is made available from the server of a person providing a hyperlink, it is our view that, even were there is an act of communication or making available, such a communication or making available is not 'to the public' because it is not to a 'new' public – it is a public which already had the possibility of access to the material from the web," the ESC said.

"Just as an improved search-engine that improves the ability of users to locate material for which they are searching should not be required to obtain permission as a matter of copyright law, so providing links or access to material already publicly available should not be regarded as an act that requires any authorisation," it added.

The ESC said, though, that if the CJEU implemented its views on the issues in its ruling, it would not prevent non-rights holders from possibly being liable for other offences, such as facilitating copyright infringement, infringing moral rights and engaging in unfair competition.

The ESC is a year-old group of academics and scholars that it has said seek to "promote their views of the overall public interest". The group's opinion on the issues before the CJEU was formed by 17 academics from across Europe, including Professor Lionel Bently from Cambridge, Professor Graeme B Dinwoodie of Oxford University and Professor Martin Kretschmer, the director of CREATe at the University of Glasgow.

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