Most people are aware that copying and pasting content from a third party website without permission infringes copyright in that content. But what if you link rather than copy? When do you need the copyright owner's permission to link?
The general principle – freedom of the internet
A string of European Court of Justice (CJEU) cases (including Svensson1) establish that once a copyright holder has made their work freely available on the internet, third parties may link to it or frame it without the copyright holder's permission. Previous cases also establish that permission is required if the link circumvents technical measures designed to prevent linking (or framing, which also involves a link). In other words, where such technical measures are in place, the content is not to be regarded as freely available and linking can be opposed. A key question is, however, whether there are other ways in which the copyright holder can restrict the freedom to link to its content. Two recent UK decisions have considered this issue.
What does “freely available” mean?
In Sky v Reddit2, Sky was successful in obtaining an interim interdict against a user who it alleged had made available hyperlinks to its Art Channel programmes on his Reddit platforms. As the Art Channel programmes were free to air, he argued (among other things) that he was free to link to them. However, the Court of Session (Lady Wolffe) disagreed. She considered that, although no payment was required, the programmes were not free “to the world at large” because users were required to register and download the Sky Go app and accept Sky's website terms and conditions, which expressly prohibited any transmission that was not for personal use. The programmes were thus only freely available to those who signed up and agreed to those terms. As a consequence the content had not been made freely available on the internet and the Reddit links infringed.
What is the position where aggregators link on a grand scale?
The case of Warner Music and Sony Music v TuneIn3 involved internet radio aggregator TuneIn, which provided UK listeners with links to internet radio stations based both in the UK and elsewhere. Warner and Sony argued that TuneIn needed a licence from them in respect of music played via its service. TuneIn argued that it was free to link to the content accessible through the radio stations' websites as this was freely available on the internet. The English Court of Appeal agreed in relation to radio stations that were licensed for the UK. However, it held that TuneIn must pay licence fees in relation to music from foreign stations that were not licensed for the UK or, in some cases, were not licensed at all. Although in principle individual UK users could have found music on those stations by searching and this was not illegal, the original licences to local radio stations in other countries did not contemplate the use of an aggregator service like TuneIn, which was targeted at the UK and which significantly increased coverage there. The owners of copyright in the sound recordings were therefore not to be regarded as having made these available to TuneIn users and could oppose linking.
The question of when linking requires permission is a controversial issue the law on which is still developing both at the EU and the UK level. Both these UK cases bolster the copyright holder's ability to control the practice of linking. The Sky case indicates that even a basic registration process may enable the copyright holder to oppose linking. The TuneIn case suggests that in situations where the practice of linking significantly changes commercial expectations in relation to numbers of visitors to a site in a particular territory, the copyright owner may be able to oppose linking. We can expect these issues to be considered further by both the EU and UK courts in the near future as new cases on this popular subject come before the courts. Comments by the Court of Appeal in the TuneIn case suggest, however, that for the moment at least, there is little appetite for departing from the general principle of freedom to link as developed by the CJEU.
1 Svensson & Others (C-466/12)
2 Sky UK Ltd v Alex Cherrie 6 April 2021 Court of Session CSOH 36
3 TuneIn Inc v Warner Music Limited and Sony Music Entertainment UK Limited
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.