Hyperlinking is legal in the EU

by Philip Wild on February 13, 2014

Philip Wild

It may seem surprising that there hasn’t been a definitive ruling on this before, but on 13 February 2013 the Court of Justice of the European Union delivered its judgment in the case of Nils Svensson and Others v Retriever Sverige AB, a reference from the Svea Court of Appeal, Sweden.

As the CJEU has said it is OK, I will provide a hyperlink to the press release re its judgment here.

The summary in the press release says:

“The owner of a website 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”

and it adds:

“This is so even if the internet users who click on the link have the impression that the work is appearing on the site that contains the link”

There are, of course, some catches.

The communication must be “directed at a new public” for there to be infringement; 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.  There is some scope for future dispute here.  The judgment explains that web pages are normally directed at everyone, so the copyright holders of the CURIA website must therefore have taken into account readers of the Kidd Rapinet website, so I’m OK with the above hyperlink as you are not a “new public” for this purpose.  But this does seem a little odd, as I doubt our clients normally browse CJEU decisions.  They come to us to explain those where relevant.

The position would be different (meaning that it might then be copyright infringement) in a situation where the hyperlink circumvents restrictions put in place by the hyperlinked site in order to restrict public access to that 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.  So, no circumventing paywalls.

Nothing is said about circumventing ads on the hyperlinked site by framing the linked copyright work so those ads don’t appear.  But this wasn’t a question specifically put to the CJEU by the Swedish court, and the CJEU normally limit themselves to answering only the questions referred to them.  It therefore appears this is legal, in copyright terms at least, given you can make it appear the copyright work is on your own site.

Please feel free to link to this article from your website, as I am taking into account internet users worldwide as the public for this article.  Our server will probably crash as they all read this.

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