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:
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