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Hyperlinks and “a new public”

ucylcjh23 January 2015

What are the copyright implications of  hyperlinking to a piece of content (perhaps a film or a photograph) which is already freely available on the internet?

The Court of Justice of the European Union (CJEU) came up with an interesting decision last year in the case of Svensson v. Retriever Sverige AB , a reference from a Swedish court. A number of journalists objected to Retriever (a site which aggregates news stories) hyperlinking to their work published on accessible newspaper sites.

By hyperlinking is one communicating the original work to the public? “Communication to the public” is one of the acts restricted by copyright ( Article 3(1) of the EU Copyright Directive, 2001/29/EC).

The CJEU took the view that Retriever was not making the work available to a new public and so this did not constitute “communication to the public” and was therefore not infringing the authors’ copyright. People following the hyperlinks to read the articles could also have accessed them on the newspaper sites and were therefore not “a new public”.

A more recent decision from the CJEU from October 2014 (but not available in English yet), BestWater International GmbH v. Mebes and Potsch (C 348/13) reinforces the view taken by the CJEU in the Svensson case. This time the content was a promotional video originally uploaded on BestWater’s own site then (without their knowledge) on YouTube. The other parties then linked to the video on YouTube from their own sites. The CJEU once again used the “new public” reasoning to conclude that the linking did not constitute “communication to the public”.

The new judgment seems to reinforce the view that using hyperlinks to freely accessible content does not give rise to copyright issues. Protected content would of course be a different matter.