European Copyright Society Says Hyperlinks (And Framing) Should Not Be Infringing
from the good-for-them dept
The Spanish Pirate Party points us to a recently released opinion by the European Copyright Society concerning whether or not hyperlinks themselves may be infringing. The paper was written by 19 European legal scholars, concerning a specific case before the European Court of Justice, Case C-466/12 Svensson, which is yet another case of a news aggregator being sued for daring to link its customers to relevant articles. The reporter, Mr. Svensson, argues that even though the aggregator, Retriever, only posted links, they were “making available” the work. The European Copyright Society is not buying it, noting that hyperlinking is much more akin to a footnote:
Clearly, hyperlinking involves some sort of act – an intervention. But it is not, for that reason alone, an act of communication. This is because there is no transmission. The act of communication rather is to be understood as equivalent to electronic “transmission” of the work, or placing the work into an electronic network or system from which it can be accessed.
This is because hyperlinks do not transmit a work, (to which they link) they merely provide the viewer with information as to the location of a page that the user can choose to access or not. There is thus no communication of the work. As Abella J explained, speaking for the majority of the Supreme Court of Canada (in a case concerning hyperlinks and defamation):
“Communicating something is very different from merely communicating that something exists or where it exists. The former involves dissemination of the content, and suggests control over both the content and whether the content will reach an audience at all, while the latter does not.
Hyperlinks … share the same relationship with the content to which they refer as do references. Both communicate that something exists, but do not, by themselves, communicate its content. And they both require some act on the part of a third party before he or she gains access to the content. The fact that access to that content is far easier with hyperlinks than with footnotes does not change the reality that a hyperlink, by itself, is content-neutral — it expresses no opinion, nor does it have any control over, the content to which it refers.”
Basically, since a hyperlink just points you somewhere it’s not transmitting the work, there’s no copyright violation. The paper goes into significantly more detail, citing case law around the globe to support its position. It also warns the court that while this may seem like a simple issue, it’s vitally important to the health of the internet:
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. Europe has developed a significant sector of SMEs, many of whose web operations depend on the use and provision of links. The Court must not under-estimate the importance of its ruling in this case.
Also of note, is that the opinion paper says that the same reasoning applies equally to “framing.” This is a bit more controversial, but we’ve always pointed out that embedding and framing are no different than linking, since they’re merely pointing a computer from where to pull information, and the EU Copyright Society agrees:
In principle, we are unable to see why “framing” as it is often called, should be treated any differently for copyright purposes from hyperlinking.
In so far as there might be technical differences in some cases where the work is made available from the server of a person providing a hyperlink, it is our view that, even were there an act of communication or making available, such a communication or making available is not “to the public” because it is not to a “new” public – it is a public which already had the possibility of access to the material from the web. Just as an improved search-engine that improves the ability of users to locate material for which they are searching should not be required to obtain permission as a matter of copyright law, so providing links or access to material already publicly available should not be regarded as an act that requires any authorisation.
They do say that framing may give rise to other forms of liability, including unfair competition or moral rights, but that is separate from the copyright question before the court.
Considering how much pushback there has been recently in terms of companies arguing that links are infringing, this is nice to see. Here in the US, there’s a similar case going on between the Associated Press and clipping service Meltwater. Hopefully common sense wins the day in both cases, and mere linking or framing is not seen as copyright infringement.