Website linking - a vexed copyright question resolved

25 February 2014 - 1:27pm -- Gerry Danby
Copyright Artisan Food Law Limited

Does your website contain hypertext links to content available elsewhere on the web?

It has, until now, been a grey area whether including a link on a website to copyright protected content on a third party website was a breach of that copyright. This small but crucial aspect of intellectual property law has recently been the subject of judicial clarification.

Under Directive 2001/29/EC, which concerns the harmonisation of copyright and related rights in the information society, Article 3(1) provides:

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.

In Svensson v Retriever Sverige AB the Court of Justice of the European Union ruled “that the provision on a website of clickable links to works freely available on another website does not constitute an ‘act of communication to the public’, as referred to in [Article 3(1)].” There is, in these circumstances, no breach of copyright.

It would appear that it makes no difference whether a simple text link is used or third party content is embedded “in such a way as to give the impression that it is appearing on the site on which the link is found, whereas in fact that work comes from another site.”

The rationale for this approach is that there is no new public involved that could not have freely accessed the third party content directly. The position will be otherwise where persons not contemplated or authorised by the copyright holder gain access to content, for example, where a link circumvents restrictions put in place that restrict access to paid subscribers. In cases where a new public is involved an infringement of copyright may well arise.

Artisan Food Law, for one, is relieved!

 

You can learn more about copyright law in the Artisan Food Law Library document: Intellectual Property: Copyright

The full judgement in Svensson v Retriever Sverige AB (Case C-466/12) can be read here

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