Hyperlinks are legal? Yes but...hyperlink with care

Posted by Simon Stokes on
Yesterday the European Court of Justice finally issued a ruling in a highly significant copyright case called Svensson. 

Since December 2002 European Internet copyright law has been harmonised by the 2001 Information Society Directive.  But only now are cases coming to court testing and clarifying various aspects of this law.

In Svensson  the issue was whether hyperlinks require the permission of the owner of the copyright in the material linked to – this is on the basis that the Information Society Directive gives right holders the power to control the online communication to the public of their works – the so called "communication to the public right".  Given hyperlinks are basic to how the Internet operates a decision that would have required permission would effectively have closed down the Internet in the EU or at least mired it in litigation and bureaucracy in clearing rights.  It would also have put EU copyright law in conflict with US and other copyright laws.

So to great sighs of relief in the copyright community the Court sensibly ruled that hyperlinks do not infringe the communication to the public right. But not in all circumstances.  The door was left open to find the right infringed where for example the hyperlinks point to material only available via a subscription.  The Court also did not address the question of what if the website linked to expressly prohibited links or required prior permission in its website terms and conditions or what if these terms prohibited commercial re-use.

So the moral of the case is use hyperlinks with care – check you are not linking to subscription only content and also check the website terms and conditions of the site you are linking to.

For further information on complying with EU copyright law please contact Simon Stokes, Partner in our Intellectual Property Team.  The fourth edition of his book Digital Copyright Law and Practice has just been published by Hart Publishing and is a leading text in this area.

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Leading the firm's technology practice in London, Simon specialises in information technology law, including outsourcing, cloud services, protecting software IP and licensing of market leading data analytics software.

Simon Stokes
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