Online copyright - Hyperlinking and accessibility

Hyperlinking

There have been a number of recent cases in this area, which have begun to clarify the position for hyperlinking to a third party's content. The legal basis of this topic is whether hyperlinking is a "communication to the public" which is a protected right of a copyright owner under Article 3 of the Copyright (InfoSoc) Directive 2001/29/EC (implemented in the UK for the Copyright and Related Rights Regulation 2003, which amended the UK's Copyright, Designs and Patents Act 1998 (CDPA)).

The case of Svennsson (C-466/12) held that linking to freely available content does not infringe copyright, on the basis that a 'new public' has not been provided access to such information. This decision was welcomed as common sense prevailing; confirming that 'every day' hyperlinking or framing does not constitute a communication to the public.

Bestwater (C-348/13) provided further illumination on what established a 'new public', stating that this was a public not taken into account by the copyright owner when it authorised the initial communication to the public. Bestwater also held that a communication by a different technical means may constitute a new communication to the public.

It was hoped that the case of C-More (C-279/13), which involved bypassing a paywall to live streaming of hockey matches, would develop this area further. However due to the previous decisions the court decided not to provide any further guidance. Nevertheless the court did hold that an act of communicating to the public means enabling a public to access a protected work at a time and place selected by them, ie, 'on-demand'. Therefore the 'live-streaming' would not fall under the Infosoc Directive; noting that member states may implement rights to prohibit such communications, as the UK has by Section 20 CDPA.

An outstanding issue is the relevance of the lawfulness of the linked content, ie, does a hyperlink to a work already made available without the copyright owner's consent constitute a communication to the public? There are some pending decisions (Playboy / GS Media) which hopefully will answer this question.

Accessibility

On the issue of accessibility, the case of Hejduk (C 441/13) provides some guidance. This case concerned the interpretation of Article 5(3). The Court of Justice of the European Union (CJ) confirmed that a photographer, Ms Hejduk, whose photographs had been used without her permission on a German website, could commence infringement proceedings in Austria against the operators of the website, on the basis that the photographs on the website were accessible from Austria and therefore a harmful event occurred in Austria. In reaching this decision the CJ reiterated that it is irrelevant that the .de website in issue was not directed towards Austria as there was no requirement in Article 5(3) that the activity be directed to the particular EU member state in question. The CJ did, however, confirm that the Austrian Court only had jurisdiction to rule on the damage caused to Ms Hejduk within Austria.

Whilst Hejduk clarifies the position in relation to copyright infringement it is unlikely to have wider application to, for example, trade mark infringement cases, where there will still be a requirement for use of an infringing sign in the course of trade in the member state concerned before a harmful event takes place and jurisdiction is conferred under Article 5(3) of the Brussels Regulation.

In short

It is hoped that the courts will provide some clarification and guidance in their decisions to the pending references, and the UK Government will take the opportunity of reforming copyright legislation to address this area.

Case details at a glance

Jurisdiction: European Union
Decision level: Court of Justice
Parties: Nils Svensson, Sten Sjögren, Madelaine Sahlman, Pia Gadd v Retriever Sverige AB
Citation: C-466/12
Date: 13 February 2014
Full decision: http://dycip.com/c-46612

Jurisdiction: Germany
Decision level: Bundesgerichtshof
Parties: BestWater International GmbH v Michael Mebes and Stefan Potsch
Citation: C-348/13
Date: 21 October 2014
Full decision: http://dycip.com/c-34813

Jurisdiction: European Union
Decision level: Court of Justice
Parties: C More Entertainment AB v Linus Sandberg
Citation: C-279/13
Date: 26 March 2015
Full decision: http://dycip.com/c-27913

Jurisdiction: European Union
Decision level: Court of Justice
Parties: Pez Hejduk v EnergieAgentur.NRW GmbH
Citation: C-441/13
Date: 22 January 2015
Full decision: http://dycip.com/c-44113