Clarity on hyperlink copyright clash

Intellectual property lawyers have breathed a sigh of relief following a European ruling that sharing hypertext links does not automatically infringe copyright.

In Svensson v Retriever Sverige C-466/12 on the interpretation of Art 3(1) of the Copyright Directive, the European Court of Justice clarified that sharing clickable links with third parties is not an infringement, as long as they do not circumvent paywalls or make the linked information available to a “new” public.

The case, which arose from a copyright dispute in Sweden between a newspaper and a website, concerned whether a hyperlink was “an act of communication to the public”, thereby falling within the copyright holder’s exclusive right and requiring their permission.

The court held that hyperlinks are indeed “an act of communication” but that the communication must be to a “new” public for liability to arise—one that was not the intended audience of the copyright holders at the time of the initial posting.

Tom Ohta, associate, Bristows, says the ruling that linking to “freely accessible” content would not infringe reflects a sensible approach; to have found otherwise could have had a “chilling” effect on the internet.

He adds: “What is significant is the clarification that a hyperlink can fall within the scope of the exclusive right. However, it is not yet clear how this ruling will apply to links to infringing content which are copied and passed on. Two pending judgments on linking and framing are expected later this year, which will hopefully give further clarity on this issue.”

Joshy Thomas, LexisPSL specialist in IP, says: “Content rich businesses where linking is key will be considering whether they now need the protection of more restrictive paywalls.  

“They may also consider whether there are choices to be made about, in certain limited cases, periodically disrupting access to make things more difficult for linkers, or controlling access through protection software. Those who are keen to monetise linking, including the use of embedded links to third party content, will be heartened by the decision.”

Susan Hall, IP specialist at Clarke Willmott, says: “This is a landmark decision and sets a clear protocol for the sharing of hyperlinks once and for all.”