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).
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).
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...
1. SGAE  ECR I-11519
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