My colleague, Kirk Dailly, wrote on this blog in September 2011 concerning the developments in case law surrounding hyperlinks at the time. Another decision has recently been issued concerning hyperlinks, but has it changed the position since Kirk reported?
The European Court of Justice (ECJ) has recently (13 February) published a pragmatic decision finding that the redirection of internet users to protected copyright material via hyperlinks is permissible without the authorisation of the copyright holder of the protected works.
Under EU law, authors of copyright work have the exclusive right to authorise any communication to the public of their protected work. The question was put to the ECJ by the Swedish Court of Appeal as to whether the redirection of internet users to journalists’ articles via hyperlinks was a “communication to the public”.
If the court had decided that it was such a communication then consent from the owner of copyright work would be required in order to establish a hyperlink from one site to the site containing the copyright material.
However, the court noted that the communication must be made to a new public in order to qualify as requiring authorisation. The articles which were the subject of the referral to the ECJ had originally been published on an open website to which any member of the public had access. The court took the view that, despite the fact that the hyperlinking website’s users were considered a “public” for the purposes of the legislation, they were not new, or were outwith the scope of the possible public to which the articles were intended for circulation.
Given the prevailing practice of hyperlinking across the internet, the practical consequences of a decision finding hyperlinks to be a communication requiring consent could have been extensive.
However, the court did acknowledge that any hyperlink which attempted to circumvent restrictions put in place on the protected works which normally permitted access only to members or subscribers would be considered a communication to a new public, as these people would not have been considered in the ‘public’ originally envisaged by the copyright owner.
Interestingly, the ECJ went a step further than simply acknowledging the realities of internet practice, noting that even if the internet user was under the impression that the copyright material was appearing on the site containing the link, authorisation was not required in that scenario either.
Despite this decision, we would still recommend that operators of websites who use hyperlinks at least make it clear who owns or operates the site and the material to which the link relates.
Please contact me, or another member of the Corporate and Commercial team, if you feel that your website terms and conditions would benefit from a review.Kelly Craig Solicitor – Corporate & Commercial