European Court: Hyperlinking To Unrestricted Copyrighted Materials Is Not Infringement

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IP500By IT-Lex Intern Amber Williams (LinkedIn)

Have you ever copied and pasted a link to a social media site and thought that you would get in trouble?  Perhaps not, but a recent case from the Court of Justice of the European Union just clarified that linking to freely available, unrestricted copyrighted material is legal.

Sverige is a company that runs and operates a website containing multiple links to articles published on other websites.  The links on Sverige’s website are only to other sites that have unrestricted access.  Sverige posted a link to the Göteborgs-Posten newspaper that contained articles written by several Swedish journalists.

The journalists “brought an action against… Sverige before the…Stockholm District Court in order to obtain compensation on the ground that the company had made use, without their authorization, of certain articles by them, by making them available to its clients.”  The District Court ruled in favor of Sverige and the journalists took the case further up the ladder, with the Swedish Court of Appeals eventually referring the matter to the EU’s Court of Justice.

The questions that the Court considered included whether the link “constitutes [a] communication to the public” and whether the link in question “is on a website on the Internet which can be accessed by anyone without restrictions or if access is restricted in some way”.

The Court found that Sverige’s link to the website with the journalists’ articles was not a ‘communication to the public’:

[I]n order to be covered by the concept of ‘communication to the public’…a communication, such as that at issue in the main proceedings, concerning the same works as those covered by the initial communication and made, as in the case of the initial communication, on the Internet, and therefore by the same technical means, must also be directed at a new public…a public that was not taken into account by the copyright holders when they authorized the initial communication to the public.

In other words, if copyrighted material is already freely available on the internet, it is not copyright infringement to post a link to that copyrighted material.  However, the Court noted that:

On the other hand, where a clickable link makes it possible for users of the sit on which that link appears 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, and the link accordingly constitutes an intervention without which those users would not be able to access the works transmitted, all those users must be deemed to be a new public, which was not taken into account by the copyright holders when they authorized the initial communication, and accordingly the holders’ authorization is required for such a communication to the public.

So wipe the nervous sweat off of your brow, you will not be apprehended for copyright infringement for posting links like the British man we wrote about in 2012.  There, the defendant hosted a website of links that connected users to full seasons of TV shows and new movies, and was convicted on two counts of conspiracy to defraud via copyright infringement, ending up with four-year prison sentence. His situation was different from the instant case – the copyright holders of those movies did not authorize the initial communication to the public – but even so, the issue of linking to copyrighted material will continue to be an important one.

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