Hyperlinking and Copyright Issues

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The burgeoning use of the internet throughout the international business world raises considerable intellectual property issues. Businesses must be vigilant. The copyright implications for businesses that use hyperlinks in their website content to other online content have recently been considered in detail by the European court. ParrisWhittaker’s intellectual property lawyers are experts in advising businesses on their IP issues and we welcome the clarification this ruling gives to us and our clients. What led to the case? Journalists for the Swedish newspaper, Göteborgs-Posten, and an associated web-site, claimed compensation for copyright infringement against a website operator. The operator provided clients with lists of clickable links to published articles without the journalists’ permission. The case was referred to the Court of Justice of European Union (CJEU) for its ruling on the meaning of “communication to the public” under EU copyright law.

The burgeoning use of the internet throughout the international business world raises considerable intellectual property issues.  Businesses must be vigilant.

The copyright implications for businesses that use hyperlinks in their website content to other online content have recently been considered in detail by the European court. ParrisWhittaker’s intellectual property lawyers are experts in advising businesses on their IP issues and we welcome the clarification this ruling gives to us and our clients.

What led to the case¹?

Journalists for the Swedish newspaper, Göteborgs-Posten, and an associated web-site, claimed compensation for copyright infringement against a website operator.  The operator provided clients with lists of clickable links to published articles without the journalists’ permission.  The case was referred to the Court of Justice of European Union (CJEU) for its ruling on the meaning of “communication to the public” under EU copyright law.

When will hyperlinking not infringe copyright?

The over-arching principle that emerged from the ruling is that linking to freely available internet content is permissible and does not infringe the authors’ copyright.  Businesses will be relieved at what seems – at first sight – a common sense conclusion and the only one that the court could feasibly have reached.

But the issues are more complex:  the issues the CJEU had to consider included what difference it would make if the content to which a hyperlink points to is behind a ‘paywall’. The Court considered this issue in light of previous rulings – and in relation to the concept of a “new public”.  It ruled:

• The act of ‘communication’ should be interpreted broadly.  Linking to a ‘protected’ (ie copyrighted) work comes within the meaning of ‘making available’ and a clickable link must, therefore, constitute an act of communication to the public.
• There is no copyright infringement where there is a hyperlink to public content.  Anyone with internet access could have looked at it in the first place without reaching it via the hyperlink.  What is critical is whether providing a link makes the content available to a ‘new public’ – where access to the content is restricted by a paywall, for instance.  This means a ‘public’ not originally taken into account by the authors (the copyright holders) when the initial communication to the public was authorised.

Whilst organisations cannot afford to be complacent as to what external online content they choose to link to in their own content, they can at least be confident that if they include hyperlinks to other freely available content – they should not risk claims for copyright infringement.

If you have any doubt about the status of other online content you wish to link to in your business’s own website/s, you should take expert advice from experienced intellectual property lawyers.

How can we help?

The experienced intellectual property and commercial lawyers at ParrisWhittaker have years of experience advising businesses and other organisations in relation to copyright and other IP issues.

Contact us via this website or call us now, and we can begin working on your behalf.

^{1 Svensson (Case C-466/12)}