INTRODUCTION
This year, as the world celebrates the 25th anniversary of the World Wide Web, the Web’s founder, Tim Berners-Lee, has called for a fundamental reappraisal of copyright law. By coincidence, this year we also anticipate a rash of UK and European legislative developments and court decisions centring on copyright and its application to the Web.
In our “Copyright: Europe Explores its Boundaries” series of posts—aimed at copyright owners, technology developers and digital philosophers alike—we will examine how UK and European copyright is coping with the Web and the novel social and business practices that it enables.
HYPERLINKING AND LINK HUBS
Everyone that uses the Web uses hyperlinks, and most of us may never consider whether we need permission to share a hyperlink with our friends and colleagues. As we know, hyperlinking is fundamental to the working of the Web.
However, content owners, such as film distributors, music companies, sports rights holders and owners of literary works, are deeply concerned that certain uses of this fundamental Web tool are exposing their copyright-protected works to damaging and unauthorised use. This is because the ability to hyperlink has led to the emergence of sites that host collections of hyperlinks to third party content (“Link Hubs”). And many of these Link Hubs have achieved notoriety by providing access to precisely the kinds of content that rights holders are keen to protect (think Napster, think Megaupload…).
Perhaps surprisingly, until very recently it has been unclear whether using this fundamental Web facility to link to third party content actually required the permission of the copyright owner of the linked content. A recent decision by the EU’s highest court, the Court of Justice of the European Union (CJEU), has now clarified the position.
SVENSSON vs. RETRIEVER SVERIGE
In the high profile case of Case-466/12 Svensson & Others v. Retriever Sverige AB (“Svensson”), the CJEU was asked to decide whether Retriever Sverige, the operator of a Link Hub, had acted in breach of copyright law by providing links to news articles made freely available on the website of the Göteborgs-Posten newspaper. Svensson and other journalists said that Retriever Sverige’s inclusion, on its website, of the link to their articles infringed their exclusive right to make the articles available to the public.
The question before the CJEU focused on whether or not the provision of a clickable link by Retriever Sverige constituted an act of “communication to the public” for the purposes of Article 3(1) of Directive 2001/29 (the “InfoSoc Directive”). Under that provision, authors have the “exclusive right to authorize or prohibit any communication to the public of their works, by wire or wireless means, including the making available to the public of their works in such a way that members of the public may access them from a place and at a time individually chosen by them”.
The CJEU broke the question into two parts:
- Is linking an act of “communication of a work”?
According to the CJEU, if a work is made available to the public in such a way that the public may access it, irrespective of whether the public in fact takes the opportunity to access that work, that is sufficient for there to be “an act of communication”. The provision of clickable links to protected works amounts to the “making available” of those works and is therefore “an act of communication”. So, this took Retriever Sverige’s hyperlinks half-way to infringing copyright.
- What is “the public”?
The CJEU noted that term “public” refers to an indeterminate number of potential recipients and that it implies a “fairly large number of recipients”. According to the CJEU, the provision of links on a website aimed at all potential users of the website amounts to a communication to a particular public.
For Article 3(1) to apply, however, the question was whether the public to whom the link was communicated was (a) the same as the public to whom the original communication was made or (b) a “new public”:
“a communication … 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, that is to say, at a public that was not taken into account by the copyright holders when they authorized the initial communication to the public”.
Given that (i) the initial publication of the articles on the Göteborgs-Posten website consisted of a communication to all potential visitors to the website, and (ii) access to the articles on the Göteborgs-Posten website was not subject to any restrictive measures, the CJEU found that all Web users could, if desired, have free access to the articles on the Göteborgs-Posten website. Therefore, in the CJEU’s opinion, the users of Retriever Sverige were deemed to be potential recipients of the initial Göteborgs-Posten communication; those users were a part of the same public taken into account by the journalists when they authorised the initial communication through Göteborgs-Posten.
The CJEU decided that hyperlinking on Retriever Sverige was not prohibited by Article 3(1) of the InfoSoc Directive and copyright infringement did not occur because Svensson and others had already permitted the relevant public to view the articles.
HYPERLINKING 1 – COPYRIGHT 0?
Superficially, this looks like a victory for linking over copyright. However, the CJEU’s decision does not give blanket approval to all types of linking; for example, linking will not be authorised if it is communicated to a “new public”. One way of determining whether there is communication to a new public will be if restrictions in place around the linked content (a pay wall, for example) have been circumvented by the Link Hub. This is because the new users via the Link Hub were not in the contemplation of the copyright holders when they authorised the original communication; so, in these circumstances the Link Hub would need the authorisation of the copyright holder.
Based on this reasoning, it seems that, in Europe at least, linking designed to circumvent walled content restrictions, geographical restrictions or to restore access to deleted content is likely to amount to a communication to a “new public” and will require authorisation. The key question is: what restrictions does a rights holder need to put in place in order to avoid its material being deemed to be freely available to the public? Is a paywall required or merely free subscription or registration? Is it possible to impose restrictions in a website’s legal terms of use or access?
In addition, there seems to be direct application of the principle underlying the CJEU’s Svensson decision to other forms of content which should be of interest to rights holders beyond news media.
Of course, although the decision of the CJEU brings some clarity, there remains scope for creativity in the establishment of content protection “restrictions”. However, for now this decision balances the legitimate interests of copyright holders with on-going support for fundamental Web technology. So, we are calling a tie on this one, along with the observation that this is a good example of copyright adapting to, rather than being defeated by, the new digital landscape.
COMING NEXT…
In the Svensson case, the CJEU also appeared to endorse “content framing”: it stated that its conclusion that linking is permitted where there is no “new public” is not altered if users of the link are given the impression that the work is appearing on the website on which the link is found when in fact it comes from another site.
Tantalisingly, the questions of linking and framing will be reviewed again by the CJEU in Case C-348/13 BestWater International and in Case C-279/13 C More Entertainment AB v. Sandberg. It will be interesting to see how the CJEU applies its decision in Svensson in these and subsequent cases.