By Ruth Hoy and John Cloke
Until last week, no one really knew for sure what the law thought about people including links to a third party’s copyright-protected content on their websites. Would a text-only hyperlink link potentially infringe copyright? Does it make a difference if the content is embedded, or framed, on the linking website?
The Court of Justice of the European Union has just ruled in the case of Svensson that including a link constitutes a “communication to a public” under EU copyright law and, therefore, will potentially constitute an infringement of the copyright in the “linked-to” content. There is no need for the “linking” website to embed the content, so that it is seen on the linking website itself – even a mere text link will suffice. However, for there to be an infringement of a work, there needs to be communication to a “new public”, i.e. one not contemplated or authorised by the right holder.
In Svensson, the court determined that there would be no “new public” (and no infringement) where the work which is linked to is made available on a publically available website with the authorisation of the right holder. Effectively, it seems, a right holder who authorises his or her work to appear on a website which is freely available to all will be treated as having authorised “all users of the Internet”, so that linking to the content on the authorised website will not infringe.
However, there will be infringement where the link constitutes availability to a “new public”. The court specifically distinguished the situation where a link circumvents measures on the host site which were designed to restrict public access (e.g. a subscription pay wall) – this would be a communication to a new public not contemplated by the right holder.
As such, this looks like a good decision for premium right holders faced with the problem of websites which link to and embed content hosted, without authorisation, on third party sites and servers. Such linking websites often protest that they do not infringe because they do not themselves host any content. However, following the reasoning in Svensson, linking and embedding in those circumstances would constitute a communication to a new public not authorised by the right holder and, on that basis, would infringe copyright.
The judgment can be found here.