In two recent cases (Svensson v Retriever Sverige and Bestwater International v Mebes and Potsch C348/13 (for which there is no English judgment)), the Court of Justice of the European Union has answered some questions about whether posting links to copyright-protected works located on third party websites amounts to an infringement of copyright. The guidance provided by the Court and the current state of the law can be distilled into the following points:
- In principle, posting a hyperlink to a copyright-protected work located on a third party website can amount to an infringement of the ‘communication to the public’ right (one of the bundle of rights that a copyright owner has).
- It will not be an infringement of that right if the work on the third party website is already freely accessible to the public, assuming that the copyright owner has authorised that. In that case, the work has already been communicated to the entire public and there is no new public left to communicate it to.
- It will be an infringement of that right to the extent that the work was not already freely accessible to the public. For example, if the work is located behind a paywall - and therefore only accessible by paying subscribers - and the hyperlink provided access to the entire public by circumventing the paywall.
- If the link is an ‘embedded’ link (for example, a video embedded on the website using YouTube Player) the same guidance in 1 to 3 for hyperlinks above applies.
- For both hyperlinks and embedded links, the fact that the work appears within the frame of the website which is doing the linking (sometimes referred to as ‘framing’) does not have any bearing on whether or not it infringes the communication to the public right.
- However, it is possible that other rights or causes of action may be engaged when framing occurs – for example, the law of passing off may be engaged if the framing causes confusion about the source of the work in question.
- The Court’s guidance does not address the issue of links to works which have already been made accessible but without the authorisation of the copyright owner – for example, a pirate copy of a video posted on a website. It seems likely that, in the absence of such authorisation, the copyright owner would remain entitled to rely on their communication to the public right.