To link or not to link, that is the question
By Bianca Mueller
One of the central features of the internet is the ability for one website to be linked to another with a click of a button, thus creating a hyperlink: a virtual trail of related information.
The European Copyright Society described the importance of hyperlinks in the following words: “Although hyperlinking takes many forms and has multiple functions, there can be no doubt that it is the single most important feature that differentiates the internet from other forms of cultural production and dissemination. Hyperlinking is intimately bound to the conception of the internet as a network, and hyperlinks constitute paths leading users from one location to another. […] The legal regulation of hyperlinking thus carries with it enormous capacity to interfere with the operation of the internet, and therefore with access to information, freedom of expression, freedom to conduct business, as well – of course – with business ventures that depend on these types of linkages [sic].”
Hyperlinks are integral to the creation and functioning of the internet. But are they legal? Is hyperlinking a copyright infringement? Good question!
The European Court of Justice (ECJ) has recently had to decide this very question: whether setting a hyperlink to a website that contains copyright-protected work amounts to a “communication to the public” (Svensson v Retriever Sverige AB;  Bus LR 259).
The Svensson case revolves around a dispute that arose between the Swedish media monitor and news aggregator Retriever Sverige AB (Retriever) when it provided clickable links to an article written by journalist Mr Svensson. Mr Svensson claimed that Retriever’s hyperlinks infringed his copyright in the news article, and he in turn sought compensation on the basis that Retriever communicated his work to the public without having obtained permission.
The case is part of a long string of copyright litigation across the world between traditional newspaper outlets and online news aggregators. For people aged between 18 and 29, the internet is now the main source of news, a study from the Pew Research Centre has found.
This increased reliance on the internet has resulted in plummeting revenue for the traditional newspaper industry and substantial increase of revenue streams through online advertising for online news services.
The Swedish Court of Appeal (Svea hovrätt) referred the case to the European Court of Justice (ECJ) in order to ascertain whether setting a link to another website constitutes an act of communication to the public within the meaning of Article 3(1) of Directive 2001/29 on the harmonisation of certain aspects of copyright and related rights in the information society.
Communication yes but no new public
The ECJ decided that providing links to protected works constitutes an act of communication, but that in order to violate EU copyright laws, the communication must be directed at a new public.
By a new public, the court means a public that was not taken into account by the copyright holders at the time the initial communication was authorised, that being the time the articles were published on the website. In other words, as something posted on the internet is available to the entire internet community it cannot be considered a new act of making it available to a new public.
A key element of the decision was that Retriever provided the links to website articles that were already publicly available to all internet users. The court held that posting a link to copyright-protected material that is already freely available on the web does not constitute an “act of communication to the public”.
The decision of the ECJ is important for search engines and news aggregators because it confirms their business practice of referencing and disseminating information on the internet via hyperlinks. The scope of the decision is limited, however. It is not a carte blanche for linking to all content on the internet.
Posting a link may constitute a copyright infringement if the link is used to circumvent a paywall, subscriptions system, or any other restriction that is intended to restrict public access to the website content.
This decision therefore does not answer the question of whether linking to copyright infringing content constitutes an infringement. That question is yet to be decided in the C More Entertainment case (C More Entertainment AB v Linus Sandberg Case C-279/13).
In France, the issue of referencing press articles via hyperlinks resulted in a row between French publishers and Google. The publishers claimed to have lost both readership and revenue and asked the French government to make Google to pay for the use of their content, notably on Google News.
In February 2013, Google agreed to pay €60 million into a Digital Publishing Innovation Fund to support digital publishing initiatives in France.
In Germany, thanks to the successful pressure of publishers, a new law was enacted that enabled publishers to charge online aggregators and search engines for reproducing their content in full. Although heavily contested, the law has been in force since August 2013.
If hyperlinking were regarded as communication to the public, all hyperlinks would need to be expressly licensed. Were this to happen, the functioning of the internet would be rendered ad absurdum.
Bianca Mueller is a qualified judge from Germany, a German attorney and an enrolled solicitor in New Zealand.
This article was first published in LawTalk 839, 11 April 2014, page 18.