European copyright scholars: hyperlinking is not public communication

By EDRi · February 27, 2013

The Swedish Court of Appeal has referred to ECJ (European Court of
Justice) a case involving the question of whether publishing a hyperlink
to content can be considered a communication to the public and,
implicitly, a breach of the creator’s copyright (in case the hyperlink
is published without the author’s consent), under the European law.

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.

Having in view the importance of the issue, a European scholars and
academic NGO with 17 law professors and intellectual property experts –
European Copyright Society (ECS) considered it should offer its
assessment: “As Tim-Berners Lee, who is regularly accredited as being an
inventor of the World Wide Web, has explained, a standard hyperlink is
nothing more than a reference or footnote, and that the ability to refer
to a document is a fundamental right of free speech”.

“Hyperlinks are not communications because establishing a hyperlink does
not amount to ‘transmission’ of a work, and such transmission is a
pre-requisite for ‘communication’. Even if transmission is not necessary
for there to be a ‘communication’, the rights of the copyright owner
apply only to communication to the public ‘of the work’, and whatever a
hyperlink provides, it is not ‘of a work’,” explains ECS.

However, ECS is clear in noting that individuals and companies aren’t
necessarily free to link to any online content they like with impunity.
ECS reveals that there are cases when linking may lead to certain
liabilities such as linking which leads to a deliberate facilitation of
access to copyright infringing material, unfair competition, moral
rights and circumvention of technological measures.

ECS’s opinion is that “the Court needs equally to consider the effect of
its ruling. If hyperlinking is regarded as communication to the public,
all hyperlinks would need to be expressly licensed. In our view, that
proposition is absurd.”

Hyperlinking Is Not Copyright Infringement, Scholars Say (18.02.2013)

Case C-466/12, Svensson – hyperlinks and communicating works to the
public (20.01.2013)

Case C-466/12, Svensson – hyperlinks and communicating works to the public

European CopyrightSociety – Opinion on The Reference to the CJEU in
Case C-466/12 Svensson (15.02.2013)