Do You Consider Hyperlinking to Be Copyright Infringement? The Question Has Come Up in Europe

The Court of Justice of the European Union (CJEU) has been asked to provide a ruling on how EU copyright law applies to hyperlinks. Late last year, a Swedish court asked the CJEU:

If anyone other than the holder of copyright in a certain work supplies a clickable link to the work on his website, does that constitute communication to the public within the meaning of Article 3(1) of Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society?

European authors have the right to control the "communication to the public of their works" and "the making available to the public" of their works. In light of this right, the question to be answered is whether hyperlinking to copyrighted content constitutes infringement.

In an opinion issued last Friday, the European Copyright Society (ECS) answered the question in the negative.  

"Hyperlinking in general" the ECS said, "should be regarded as an activity that is not covered by the right to communicate the work to the public embodied in Article 3 of Directive 2001/29."

Three reasons were offered for this conclusion:

(a) Hyperlinks are not communications because establishing a hyperlink does not amount to "transmission" of  a work, and such transmission is a prerequisite for "communication";

(b) Even if transmission is not necessary for there to be a "communication", the rights of the copyright owner apply only to communication to the public "of the work", and whatever a hyperlink provides, it is not "of a work";

(c) Even if a hyperlink is regarded as a communication of a work, it is not to a "new public."

The opinion cites Tim-Berners Lee, who is regularly accredited as an inventor of the World Wide Web, for the definition of a hyperlink as "nothing more than a reference or footnote." This ability to refer to a document is described as "a fundamental right of free speech."

The ECS urges the Court not to underestimate the ruling's importance, noting that hyperlink regulation has the "enormous" capacity to interfere with the Internet and, therefore, with:

  • access to information;
  • freedom of expression;
  • freedom to conduct business; as well with
  • business ventures that depend on these types of linkages.

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