Innocenzo Genna, an Italian lawyer with expertise in European regulation and ICT policy, examines a case recently decided in the European Union over whether copyright owners should have to authorise hyperlinks to their works. He argues that more litigation will follow this decision, but the decision could have a major impact on many common Internet services, like news aggregating sites. 

The Court of Justice of the European Union released a sentence (Judgment in Case C‑466/12 Nils Svensson and Others v Retriever Sverige AB) which may have unpredictable impact onto the Internet environment.

The parties in front of the Court discussed whether publication of clickable internet links (so-called hyperlinks) referring to protected content should be subject to the authorization by the person owning the concerned copyright. The European judges dismissed the request of the plaintiff (i.e. a rights-holder claiming that his authorization was due to refer his content via hyperlink) stating that:

(i) the owner of a website may, without the authorisation of the copyright holders, redirect internet users, via hyperlinks, to protected works available on a freely accessible basis on another site;

(ii) this is so even if the Internet users who click on the link have the impression that the work is appearing on the site that contains the link.

While this reasoning  may be seen as a positive outcome for some (libertarians, ISPs) and not for others (content industry), a deeper analysis of the decision shows that the legal background can give rise to more controversial effects. This is why the various stakeholders waiting for the outcome of this proceeding may have, at the end, different views whether the final decision is favourable or not. For sure, a battle, not a war, was won  – however it is not certain who won the war and who won the battle.

To clarify: hyperlinks are a reference to data that the reader can directly follow to find an already available content and their function is therefore to link any given information to other information over the Internet. Hyperlinks are therefore tools inherent and necessary for the functioning of the World Wide Web. In my opinion, a hyperlink should not amount to a transmission or communication of the work but a reference to an already available work. Fact is, sharing hyperlinks on the Internet is one of the most common activities among people surfing  the Internet. In this light, requiring the authorisation of a rights-holder before sharing a hyperlink would not only be cumbersome for the Internet but would also undermine the fundamental right of freedom of speech.

By contrast, the European Court took a different legal approach, holding that the provision of clickable links to protected works constitutes an act of communication under the Copyright Directive (Directive 2001/29/EC). According to the European judges, such an act is defined as the making available of a work to the public in such a way that members of the public may access it. This means that an authorisation from the rights-holder should be required in principle, save for the exceptions.

In the present case, the Court decided for the exception. Thus, the judges found that the authorization was not needed because of the specific circumstances: whether or not the public accessing the protected content was “new” and whether the hyperlinks may be used to circumvent restrictions from a right holder. However, the general principle stated by the Court remains valid. If a hyperlink is an act of communication under the Copyright Directive, every company or citizen sharing content and information on the Internet via hyperlinks could potentially face uncertainty and risks. In fact, the lawfulness of their behavior will depend on the law, or rather on some exceptions indicated by the jurisprudence, which by the way could be challenged case by case by rights-holders.  This delicate situation may have a relevant impact on business and also on fundamental rights, including freedom of speech. I do not know whether the European Court understood the deep implications of their reasoning, some under-estimation is possible.

About the concrete case: press articles written by several Swedish journalists were published on a freely accessible basis on the website of the Göteborgs-Posten. Retriever Sverige, a Swedish company, operates a website providing its clients with hyperlinks to articles published on other websites, including the site of the Göteborgs-Posten. Retriever Sverige did not, however, ask the journalists concerned for authorisation to establish hyperlinks to the articles published on the site of the Göteborgs-Posten. Thus, the question was whether the provision of such links constitutes an act of communication to the public within the meaning of EU law. If so, the establishment of hyperlinks would not be possible without the authorisation of the copyright holders.

In this respect, the Court pointed out that the “communication” (pursuant to the Copyright Directive) must be directed at a “new public”, that is to say, at a public not covered at the time the initial communication was authorised. According to the Court, since the works offered on the site of the Göteborgs-Posten were freely accessible, then the users of Retriever Sverige’s site must be deemed to be part of the public already taken into account by the journalists at the time the publication of the articles on the Göteborgs-Posten was authorised. Therefore, the owner of a website, such as that of Retriever Sverige, may, without the authorisation of the copyright holders, redirect internet users, via hyperlinks, to protected works available on a freely accessible basis on another site. However, according to the Court the position would be different should hyperlink permit users of the linking site to circumvent restrictions put in place by the site on which the protected work appears in order to restrict public access to that work to the latter site’s subscribers only: in that situation, the users would not have been taken into account as potential public by the copyright holders when they authorised the initial communication.

A positive interpretation of this reasoning would lead to the conclusion that any time the “hyperlinked” content is available for free, the hyperlink referral is valid (i.e. an authorization is not needed). However, most of protected content in the Internet is available for free, since the remuneration is provided by other means (mostly advertising). Therefore, some stakeholders will continue to maintain that hyperlink may be infringing copyright of third parties, even when referring to “free” content. The solution of the Court will not be sufficient for this problem and further litigation will follow, for sure.

This post originally appeared on the blog radiobruxelleslibera and has been re-posted here with the permission of the author. It gives the views of the author, and does not represent the position of the LSE Media Policy Project blog, nor of the London School of Economics