Europe's Highest Court Says Linking Doesn't Require Permission
from the party-like-it's-1994 dept
Recently, Techdirt has reported on a number of important judgments from the Court of Justice of the European Union, the EU’s highest court. Here’s another one that represents a good win for common sense. It concerns hyperlinking to copyright materials held on another site (pdf). Here’s the background:
Press articles written by several Swedish journalists were published on a freely accessible basis on the website of the Göteborgs-Posten. Retriever Sverige, a Swedish company, operates a website that provides its clients with clickable internet links (hyperlinks) to articles published on other websites, including the site of the Göteborgs-Posten. Retriever Sverige did not, however, ask the journalists concerned for authorisation to establish hyperlinks to the articles published on the site of the Göteborgs-Posten.
The key issue that the court had to consider was whether these hyperlinks constituted an act of communication to the public within the meaning of EU law, because if so, that would give the authors of those articles the right to authorize or prohibit their transmission. In its ruling, the Court of Justice found that such links were indeed an act of communication, but with one important caveat:
The Court points out, however, that the communication must be directed at a new public, that is to say, at a public that was not taken into account by the copyright holders at the time the initial communication was authorised.
Applying that to the present case:
As the works offered on the site of the Göteborgs-Posten were freely accessible, the users of Retriever Sverige’s site must be deemed to be part of the public already taken into account by the journalists at the time the publication of the articles on the Göeborgs-Posten was authorised. That finding is not called into question by the fact that the internet users who click on the link have the impression that the work is appearing on Retriever Sverige’s site, whereas in fact it comes from the Göteborgs-Posten.
the owner of a website, such as that of Retriever Sverige, may, without the authorisation of the copyright holders, redirect internet users, via hyperlinks, to protected works available on a freely accessible basis on another site.
However, the “freely accessible basis” part is crucial, as the court goes on to note:
The position would be different, however, in a situation where the hyperlink permits users of the site 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, since in that situation, the users would not have been taken into account as potential public by the copyright holders when they authorised the initial communication.
It’s a sensible ruling that’s obviously welcome, but it’s pretty ridiculous that in 2014 we are still having this kind of discussion about whether the basic mechanisms of the Internet and Web are compatible with copyright law. The default answer for all such questions should be: if it isn’t, then copyright clearly needs updating to reflect the realities of the digital world.