Most Read Contributor in New Zealand, September 2016
Hyperlinking to a website containing copyrighted
material is not an infringement of copyright, according to a recent
decision from the European Court of Justice.
Hyperlinking and IP
Hyperlinking is a mechanism to direct web-browsers from one web
page to another. A few years ago, the Canadian Supreme Court
decided that to hyperlink to a defamation was not defamatory (see
Chapman Tripp commentary
The issue before the European Court1 was whether it
is an infringement of copyright protection to hyperlink to
protected material, without the consent of the copyright
Swedish company, Retriever Sverige, provides users of its
website with hyperlinks which direct them to copyright protected
articles published on other websites2 and was being sued
by journalists from the Goteborgs-Posten news site for copyright
The journalists, concerned that users who clicked on the
hyperlinks would not realise they had been directed to another
site, claimed Retriever Sverige was infringing on their exclusive
right to make their works available to the public. Retriever
Sverige said its website merely indicated to its clients where the
works could be found.
The dispute reflects the tensions between freedom of
communication and protection of IP rights in an information
The Court's ruling
The Court distinguished between information that is "freely
accessible" and information that is restricted. If website
A's hyperlinks to website B provide access to people who were
not intended to have access by the original authors (website B),
then website A is communicating to a "new" public and
must first obtain authorisation from the copyright owner.
But in the case in question, the information on website B was
"freely accessible" to the public at large, so no
permission was needed. It did not matter that the user may not
realise he or she had been redirected to another
Website A would only ever need authorisation if the hyperlink
allowed users to circumvent restrictions put in place by Website
B4 - for example, subscribers' only material.
Chapman Tripp comments
The Court wanted to restrict Member States' ability to give
wider protection to copyright owners.5
In some ways, this is a pragmatic decision which reflects the
reality that having disseminated information to the world at large
without restriction, intellectual property rights are not the
answer to reclaim the content. The decision will be welcomed as
confirming it is business as usual for search engines and news
On the other hand, some website owners may prefer the public to
access their home page because of advertising revenue arrangements.
The decision may therefore incentivise website owners to put up
barriers such as a pay wall or technological barriers to prevent
"deep" hyperlinking (to a particular page within the
site, rather than the home page).
For our part, we have little difficulty with the EU approach as
a matter of IP law. Hyperlinking is referencing, not reproduction
and is a far cry from actual piracy.
We would expect a similar outcome here.
1Case C-466/12 Svensson v Retriever Sverige AB
The information in this article is for informative purposes
only and should not be relied on as legal advice. Please contact
Chapman Tripp for advice tailored to your situation.
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