Linking to infringing material may not on its own be an act of copyright infringement, says UK judge

Mr Justice Arnold found two websites to have breached UK copyright laws by displaying links users had published to infringing content those individuals had uploaded to an underlying hosting site. He ordered the six major internet service providers (ISPs) in the UK to block access to the two websites as a result.

However, the judge in his ruling said that in order to prove copyright has been infringed, content owners may have to prove more than that someone has linked to material that infringes their rights.

"I am not sure that the mere provision of a hyperlink amounts to communication to the public," said Mr Justice Arnold in his judgment. "It is clear from the evidence in this case, however, that many, if not most, of the users in question do not merely provide a link to the host site, they also upload the content to the host site. In my judgment, the combined effect of these acts does amount to communication to the public even assuming that the mere provision of a hyperlink does not."

Mr Justice Arnold said "it is arguable" whether linking to unlicensed material as opposed to legitimate content makes any difference to whether that act of linking constitutes a 'communication to the public', especially where "the hyperlink is not directly to a source of the copyright work".

He also said that "it is arguable" whether 'framing' stemming from the clicking of a link makes any difference as to whether there has been a communication to the public. Framing occurs when a clicked-on link displays the linked-to work within the frame of the operator's website.

UK copyright laws state that the unauthorised communication of rights holders' content to the public is an act restricted by copyright in certain circumstances.

Six major entertainment companies including Disney, Twentieth Century Fox and Universal Pictures asked the High Court to issue an injunction against the big six UK internet service providers (ISPs), which include BT, Sky and Virgin under the Copyright, Designs and Patents Act.

The rights holders wanted the ISPs to block access to solarmovie.so and tubeplus.me which they claimed breached their copyrights. The websites allow users to stream films and TV programmes but do not themselves host the underlying files. Links are displayed on the websites to allow users to access the content.

Mr Justice Arnold said that both Solar Movie and Tube Plus had "actual knowledge" that their sites were being used to infringe copyright and ruled that it was proportionate to serve an injunction on the ISPs to prevent the ISPs' customers accessing those sites.

The injunction issued by the court was made under Section 97A of the Copyright, Designs and Patents Act UK, which gives courts the power to grant an injunction against an ISP if it had 'actual knowledge' that someone had used its service to infringe copyright.

Such an injunction was first issued in a case in 2011 involving BT and the Motion Picture Association over file-sharing website Newzbin2. Similar injunctions have subsequently been issued to ISPs requiring them to block access to The Pirate Bay and another website that displayed links to other sites where users could stream English Premier League football matches for free.

The Court of Justice of the European Union (CJEU) has been asked to provide a ruling on how EU copyright 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.

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".