UK: Hyperlinks And Copyright Infringement: Svensson

Last Updated: 14 March 2014
Article by Harry Jupp

In a recent decision, the Court of Justice for the European Union has addressed whether providing a hyperlink can be an act of infringement under the EU Copyright Directive.

Simple links, deep links and framing

Hyperlinks are now a routine part of internet life for most computer users.  However, some may not be aware that there are terms for the different types of hyperlinks.  The three most common are as follows. 

First, a simple hyperlink (or simple link for short) is a link to the homepage of the linked site.  For example, www.wedlakebell.com.

Second, a deep hyperlink (or deep link for short) is a link which takes the user directly into part of the linked site so that the homepage is avoided.  For example, http://www.wedlakebell.com/intellectual-property.

Third, there is a linking technology called framing which allows a website to appear to host the content of another website.  The user will therefore think he is viewing the linked third party content without leaving the original site. 

Thank the Swedes

Nils Svensson is a journalist who, along with his three co-claimants, had his articles published by the Swedish newspaper, Goteborgs-Posten, on their website which was freely available to the public. 

While the journalists had given permission for Goteborgs-Posten to publish the articles, when they found out that a Swedish media monitoring company called Retriever had been providing its subscribers with deep hyperlinks to the online articles, they issued copyright infringement proceedings against the company on the basis of Article 3(1) of the EU Copyright Directive which gave them the exclusive right to authorise or prohibit any communication to the public of the articles, whether in print or online.

The Swedish Courts

At first instance in the Swedish District Court, the judge considered that deep linking did not amount to a communication to the public and therefore Retriever's reference linking did not fall within Article 3(1). 

Thus, the journalists' claim failed.  However, unhappy with the decision, they appealed to the Swedish Court of Appeal, who almost straightaway and without expressing any view, referred the matter to Europe's highest Court, the CJEU.

The debate before the CJEU decision

Prior to the CJEU's decision, there had been some considerable EU-wide debate on the subject. 

In particular, the European Copyright Society (i.e. European academics), published an opinion in early 2013 which said that in their view simple linking did not amount to a communication to the public under Article 3(1).  They also considered that deep linking and framing were not communications to the public.  Further, The International Literary and Artistic Association published an opinion toward the end of 2013 in which they said that simple linking fell outside Article 3(1) but that deep linking to copyright-protected content fell within it.

The CJEU decision

The Court considered the questions whether Retriever's deep linking fell within Article 3(1) had to be broken down into two parts.

An act of communication

First, had there been an "act of communication"? 

As set out in the Premier League case, The Court said this was a broad test in order to ensure a high level of protection for copyright holders.  It was also apparent from Article 3(1) that an "act of communication" included making the work available to the public in a way that allows them to access it (i.e. by providing them with a link to the protected work) and that it was irrelevant that they needed to take a further step (i.e. click on the link) in order to actually access it (which follows the decision in SGAE case1).

Providing a link was therefore an act of communication within the meaning of Article 3(1).

The public

Second, had the protected work been communicated to the "public"?

Following the decisions in ITV Broadcasting and SGAE cases, the Court said that the term "public" meant an indeterminate number of potential recipients and implied a fairly large number of persons.  As Retriever's links were aimed at all the users of their site, they met this test and therefore in principle, the communication was made to the public.

But in order to come under Article 3(1), as the communication had been made by the same technical means (over the internet), the public had to be a "new public" which meant a public that the copyright holders did not consider when they authorised the initial communication to the public.  As the journalists had made their works available to all internet users through the freely accessible online version of Goteborgs-Posten, the Court found that it must follow that Retriever's subscribers were also part of the public authorised by the Goteborgs-Posten publication and could not therefore be a "new public".

The CJEU conclusion

Thus, Retriever's provision of the deep links to its subscribers fell outside Article 3(1) and was not an infringement of the journalists' copyright.  The Court's also came to a broader conclusion, that hyperlinks to works freely available on the internet will not amount to an infringement of copyright.

Further, the Court commented that its conclusions would be the same whether or not the users understood that they had been sent to another site or that the website hosted the content itself (so-called framing).

Restricted access (such as paywalls)

However, the Court made clear that its decision did not cover the situation where a hyperlink allows the recipient to circumvent the restrictions on access to the protected work so that they can access the protected work which was otherwise unavailable to him.  The recipient of such a link would constitute a new public and the provider of the link would, without the permission of the copyright holder, commit copyright infringement pursuant to Article 3(1).

Comment

This decision makes it clear that hyperlinks (whether simple, deep or by way of framing) to works which have been made freely available on the internet will not amount to an infringement of copyright.  This seems to follow the sensible decision by the Supreme Court in relation to browsing that arose out of the Meltwater proceedings.

It is obviously a good result for media monitoring companies such as Retrievers and Meltwater (who had their own proceedings before the English Court on the same subject).  The linking part of their service can continue as allowed by the CJEU which should boost their offering and therefore the number of subscribers and overall revenue.

However, they will still have to make sure that their service, including the linking, does not infringe others intellectual property rights.  For example, there may be arguments around a misrepresentation or the confusion caused by their activities.  Also, there may be copyright in the headline article which if reproduced in the link, could amount to infringement.

We also seem difficulties ahead on the factual nuances that life will almost certainly throw up.  For example, how freely available does the content have to be? Websites are known to only allow access to certain content once the internet user has registered with the site or acknowledged its terms and conditions.  Is circumventing those restrictions permissible?  What if the content was once freely available, but later becomes restricted?

Perhaps some of these questions and others will be addressed by the CJEU in the other linking cases currently before it...

Footnote

1. SGAE [2006] ECR I-11519

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
 
In association with
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement

Mondaq.com (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of www.mondaq.com

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about Mondaq.com’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.

Disclaimer

Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.

Registration

Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to unsubscribe@mondaq.com with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.

Cookies

A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.

Links

This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.

Mail-A-Friend

If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.

Security

This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to webmaster@mondaq.com.

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to EditorialAdvisor@mondaq.com.

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at enquiries@mondaq.com.

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at problems@mondaq.com and we will use commercially reasonable efforts to determine and correct the problem promptly.