The european view on legality of links

October 20, 2015
Dorota Senger

Link – i.e. a reference to another file or website is a convenient navigation tool and plays a vital role in websites’ SEO. However, embedding a link can be a risky business if it leads to a file or a website containing copyrighted work. Recently highest European courts were to decide whether the linking itself breaches the copyrights to the work to be find under the link by exposing it to the audience (legal term: dissemination) or not. Due to the scale of linking the judgment can be of interest of many IT professionals.

Most recent judgment in the case of Svensson and others against Retriever Sverige AB of the Court of Justice of European Union dated February 13th, 2014 (C-466/12) answers a couple of questions: whether embedding a link to copyrighted work by someone else than a copyright holder is actually an act of making the work available for the audience (dissemination)? Furthermore does it depends on the access restriction (e.g. a fee for the access) to the website where the work was originally posted?

The whole idea of Internet and its legality is at stake when answering foregoing questions. The Court had to balance both: interest of copyrights owners and people who use the results of creativity of the others via Internet. The judgment was formed based on the following background. Nils Svensson, Sten Sjögren, Madelaine Sahlman i Pia Gadd are the journalists who published press articles in a daily: Göteborgs-Posten and at the same time on the website of Göteborgs-Posten. The defendant Retriever Sverige is running a website where clients can find a list of links to articles published on different websites. There was no dispute between the parties that articles on the newspaper’s website were freely available. The part of the disagreement was whether the user by clicking on the said links is under the impression that is being transported to a different website to have access to the work or contrariwise: is under the impression that is reading the article on the website where link has been embedded.

 

Both of the parties had different opinions on whether said action is a violation of copyrights of the journalists or not. The plaintiffs claimed that Retriever Sverige is in the wrong by breaching their sole right to publicize their work – especially by collecting fees for access to the articles. On the other hand the defendant said that publicizing was in fact impossible because the articles had already been made publicly available by the plaintiffs and accessible without any restrictions. In other words he could not commit the breach while the right has been exhausted by the claimant.

In resolving the dispute the Court stated, in part of favor of journalists, that the fact of making works available on the website in the form of links providing access to previously published and freely available works is an act of making them available to the public. Nevertheless, the Court also pointed out that communication to the public within the meaning of Art. 3. item 1 of Directive 2001/29 requires also that access to the work (based on the same technology) was directed to a new audience. Such audience are the recipients, who were not taken into consideration by authorized persons while permitting for the primary publication. Thus the Court stated that in the contemplated case no work was made available to a new audience because every potential user of the Internet had access to articles on the newspaper’s page. The mere inclusion of a link to such website, if at the same time it does not lead to evasion of access restrictions, e.g. having registered account or purchasing an access to the content – is not a violation of the rights of author’s of works linked to.

Secondly, continuing this thought the Court settled that even when clicking on a link causes the impression that the work is displayed on the website whereon link was embedded, does not matter for prejudging whether there is a violation of copyrights. In the Court’s view such additional circumstance does not result in making the work available for a new audience. Therefore in any case the authorization of copyright holders is not required for such communication to the public.

Unfortunately, due to the content of the referred questions, the Court has not assessed the possibility of violation of journalists’ rights by charging indirect payment for the access to the articles in the form of a subscription fee at the website containing links – that is, their trading and commercialization despite the authors intention for them to be free.

To sum up it is safe to say that the Court of Justice the European Union moves towards freedom of the Internet through the legality of links. Note however, that the judgment in this case does not apply to the situation where a link refers to a work whereof publication itself on the referred website violates copyrights. Based on this argument a number of Internet portals declare that they contain only links to other sites hosting files, e.g. movies or tv series, so they are in the clear as far as copyrights are considered. The answer to the question of whether such actions will be acceptable or secondarily infringing copyrights shall be announced soon. This question was asked in a case that went to a trial in front of the Court (GS Media BV v Sanoma Media Netherlands BV, Playboy Enterprises International Incl Geertruida and Britt Dekker – (C-160/15)). We will get back to you with its outcome on the blog.