Hyperlinking to online content that belongs to another is an area that is in need of development in copyright law. Over the past few yearsÂ case law has begun to clarify the position.
Â 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 first major development came with 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.
Further developments came with Bestwater (C-348/13) which 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 in the area 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?Â