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Linking to freely accessible copyrighted content without permission not an act of infringement, rules CJEU

Website operators do not engage in copyright infringement where they link to copyrighted content hosted elsewhere on the internet without the rights holders' permission to do so where that content is "freely available", the EU's highest court has ruled.

The Court of Justice of the EU (CJEU) said that where copyrighted material is freely available, those linking to it could not be said to be providing that content to an audience different from the one rights holders allow to access their content. As a consequence, that act of linking cannot be said to be infringing under EU copyright rules.

However, where rights holders place restrictions on access to their copyrighted material, for example through the use of paywalls or login screens, website operators would infringe their rights if they provided a link to the material that allowed those access restrictions to be circumvented without permission, the CJEU said.

Intellectual property law expert Iain Connor of Pinsent Masons, the law firm behind Out-Law.com, said: "On the whole, this is a good decision for rights holders and consumers alike. It makes clear that you can provide links to content freely available on the web but that you need permission from the copyright holder in all other circumstances and so it puts rights holders in control of their business model." 

"The slight wrinkle is that where content is freely available, the decision appears to allow it to be ‘framed’ on a third party website," he said. "However, it should be possible to manage the framing issue by robust website terms and conditions and other legal means such as the author’s right not to have his work falsely attributed to another."

The CJEU was ruling in a case referred to it from a court in Sweden which 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 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.

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.

EU case law has established that, to be said to have communicated copyrighted works to the public, businesses must be shown to have communicated them to a 'new public'. That term means a different audience from the one that rights holders originally directed their material at when publishing their copyrighted content.

The CJEU ruled that there is no 'new public' to target when copyrighted material is made freely available online. The act of linking to it, therefore, is not an "act of communication to the public" for the purposes of EU copyright laws and therefore cannot be deemed to be an infringement of those rules, it said.

"Where all the users of another site to whom the works at issue have been communicated by means of a clickable link could access those works directly on the site on which they were initially communicated, without the involvement of the manager of that other site, the users of the site managed by the latter must be deemed to be potential recipients of the initial communication and, therefore, as being part of the public taken into account by the copyright holders when they authorised the initial communication," the CJEU said in its judgment.

The Court said that its finding on this point does not alter even where internet users that click on a link are given the impression, due to the way the copyrighted content accessed through the link is displayed, that the content originates from the site where the link is posted.

This finding appears to legitimise the use of 'framing', which occurs when a clicked-on link displays the linked-to work within the frame of the operator's website.

The CJEU said, though, that website operators could be said to be targeting a 'new public' where links they post allow users to circumvent access restrictions to copyrighted material without rights holders' permission.

"Where a clickable link makes it possible for users of the site on which that link appears to circumvent restrictions put in place by the site on which the protected work appears in order to restrict public access to that work to the latter site’s subscribers only, and the link accordingly constitutes an intervention without which those users would not be able to access the works transmitted, all those users must be deemed to be a new public, which was not taken into account by the copyright holders when they authorised the initial communication, and accordingly the holders’ authorisation is required for such a communication to the public," the Court said.

"This is the case, in particular, where the work is no longer available to the public on the site on which it was initially communicated or where it is henceforth available on that site only to a restricted public, while being accessible on another Internet site without the copyright holders’ authorisation," it added.

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