One of the central features of the internet is the ability for each webpage to offer connections to other webpages in a click of a button. However in the copyright world there has been much discussion about website operators infringing copyright in a work by providing a link to another website containing that work. Can hyperlinking be a copyright infringement? What kind of linking is a communication to the public and the making of an authorized copy? In this blog I will discuss this issue in a European perspective with references to some recent cases of the European Court of Justice but first let me explain to you in short the relevant forms of hyperlinking.
There are many different technical forms of hyperlinking but they can be divided in two main categories. There are hyperlinks which clearly refer to another source on the internet. These usually have the form of a regular web address (URL) displayed in bold text. When such a link is clicked, the page that the link refers to, will open in a new window and the original page (on which the link was provided) will not be visible anymore (normal hyperlinks). On the other hand there are links “where the work, after the user has clicked on the link, is shown in such a way as to give the impression that it is appearing on the same website. In this last category we have the so-called ‘embedded links’ and ‘framed links’.
Embedding and framing
Embedded links make it possible to pull in external web content and present it on your own website. If you like to have a particular media file on your own website but that media file technically originates from another website where the file can be viewed or listened to, with embedded links you can place the media file on your own website. So when the relevant link is clicked, the content in the file can be viewed and/or listened on your own website on which the link is placed and the user will not leave the site and no separate frames (pop ups) will open. An example of an embedded link is a YouTube-video on a Facebook page.
Another way of connecting websites is by “framing.” Framing is a lot like linking in the sense that you can connect a code, a word or an image to another website and a user can click on it. What makes framing different is that instead of taking the user to the original linked website, the information from that website is imported into the operators webpage and displayed in a special “frame.” Technically, when you’re viewing framed information your computer is connected to the site doing the framing - not the site whose page appears in the frame.
Let me illustrate framing by giving you an example: Elvira starts a site devoted to news and topics on Bruce Springsteen called Elvira's BruceVision. She offers a number of links to music web magazines like the “Rollingstone Artists”, whose content she displays within a frame on her website. When users click on for example "read Bruce Springsteen news", the content from the Rollingstone Artists website is displayed within Elvira's Bruce Springsteen website, in a frame. When the user reads Bruce Springsteen's news, the user's computer is still connected to Elvira's website, and not to Rollingstone Artists.
Is hyperlinking legal?
Good question! On European level the answer could be given by consulting article 3(1) of the Directive 2001/29 of the European Parliament and of the Council of 22 May 2001 on the harmonization of certain aspects of copyright and related rights in the information society (Information Society Directive).
“Right of communication to the public of works and right of making available to the public other subject-matter:
1. Member States shall provide authors with the exclusive right to authorise or prohibit any communication to the public of their works, by wire or wireless means, including the making available to the public of their works in such a way that members of the public may access them from a place and at a time individually chosen by them”.
The central question is thus whether these hyperlinks can be considered as a communication to the public and/or making available. Apart of course from the fact whether the links to the content is from a legal or illegal source and made available with or without the permission of the author. In the case law of the European Court of Justice (ECJ), the following (main) elements seems relevant with regard to a communication to the public: an 1. intervention, whereby a 2. (new) public is provided access to the works and, possibly, it has to be assessed whether this is done with the 3. aim of making a profit. If the answer on all these three elements is a “YES”, then there is a case of copyright infringement.
National courts in Europe seem to have difficulties with the interpretation of article 3(1) of the Information Society Directive and the criteria that follow from it. I will highlight two cases which are currently being held before the European Court of Justice (ECJ), both preliminary rulings.
On 18 October 2012 the Swedish Court of Appeal (Svea hovrätt) has referred the Svensson/Retriever Sverige AB case to the ECJ involving the question of whether publishing a hyperlink to content can be considered a communication to the public within the meaning of article 3(1) of the Information Society Directive and, implicitly, a breach of the creator’s copyright (in case the hyperlink is published without the author’s consent). The case in question is that of Svensson, a Swedish journalist who wrote an article published by a Swedish newspaper both in print and on the newspaper’s website and who claimed that Retriever Sverige AB, a subscription service providing links to articles that can be found online, had made links to his article available to the public, without his permission, and, therefore, for this he should be compensated. But Retriever refused to pay Svensson any money arguing that just linking to a copyright work and displaying the resulting content within a frame did not constitute infringement.
The second case is from the First Civil Senate of the German Bundesgerichtshof (BGH) -- one of the most active and influential national intellectual property courts. The BGH referred a question regarding the framing of video content to the ECJ, ("The Reality case") on May 2013. What happened in this case was that the plaintiff in the national proceedings, who made and sold water filtration system, created a promotional video ("The Reality") on the topic of water pollution and owned the copyright in the video. This video was also available on YouTube, without the applicant’s consent. The two defendants, independent sales representatives of a competitor, each ran websites on which they advertised their products. In the summer of 2010, they let visitors to their websites retrieve the plaintiff's video by framing it: consumers could click on to a link that retrieved the video in question, which was then played from YouTube. The plaintiff considered that the defendants made its video publicly available in the sense of article 19a of the German Copyright Act and, alleging infringement, demanded damages. The trial court agreed and ordered the defendants to pay damages of €1,000), but this decision was reversed on appeal. The plaintiff then appealed to the BGH, seeking restoration of the trial court's judgment.
According to the BGH's press release, the BGH states that the appellate court had correctly assumed that the mere linking of content available on a third party website by way of framing is not a “making publicly accessible” within the meaning of Article 19a of the German Copyright Act, since it is the owner the third party website who decides whether the content remains accessible to the public. So what the BGH wants to know from the ECJ is this: does the operator of a website who integrates copyright-protected third party video content, which is publicly available via another website, into his own website by way of so-called framing, infringe copyright of that content in the sense of article 3(1) of the Information Society Directive?
In both cases the European Court of Justice has still to deliver its judgment. I suspect it will not be easy for the ECJ to provide answers which will easily fit the different appearances of linking. The technique of (normal) hyperlinking forms an essential part of the way Internet functions and there are probably very few parties that would wish the ECJ to state that this form of hyperlinking is always a communication to the public. So the ECJ’s decision could have considerable impact on the free flow of information and certain fundamental rights, if the Court should decide that some forms of hyperlinking constitute a copyright infringement. For now Elvira can continue with framing on her Bruce Springsteen website and it remains to be seen if the ECJ's ruling will have any consequences for the way in which national courts will deal with the issue of hyperlinks. Nevertheless the national courts will always have to strike a fair balance between the protection of intellectual property rights on the one hand and other fundamental rights such as the freedom to information on the other hand.
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