Hyperlinks And Accidental Copyright Infringement

Have you ever embedded a hyperlink on a webpage to someone else's copyright material? According to a case at the EU Court of Justice, there is a chance that you could be infringing copyright law, and we'll tell you why ...

So, firstly, what is hyperlinking? This involves placing a link on a webpage that redrects the person who clicked on it to the protected work of another. This was recently tested at the EU Court of Justice in the 'Svensson' case.

"A Dutch magazine website linked to a hidden zip file containing images of an unpublished photoshoot!

The hyperlink said that readers of their website could download the files "here". The publisher (owner of the copyrighted photos) took the magazine to a dutch court after they refused to remove the link to the copyrighted work. It was then referred upwards to the EU Court of Justice for clarification on copyright law.

The court decided, in line with EU copyright law, that two requirements needed to be satisfied if hyperlinking would amount to a copyright-infringing act:

- that it was an act of communication of a copyrighted work not belonging to the individual
- that this communication was to the public

On the first matter, this will more often than not always be satisfied as by using a hyperlink, you are making that work available to others. It is the second question that is not so straight forward.

A communication to the public has the underlying meaning of being a 'new' public from which the content creator intended his work to be for.

Therefore, each individual case needs to be looked at based on its facts and the audience that it reaches. In EU vs Svensson, the court found that there was not a new public, as the audience was much the same the original audience of the copyrighted work.

However, although in this case it was determined that the defendant was not infringing copyright laws, it does not mean all hyperlinking will be interpreted in the same way.

There are many reasons as to why the Svensson case cannot be taken as a 'get out of jail free card' that allows all to hyperlink without fear of infringement:

- The court did not assess a case which involved commercial use and economic gain. If you are hyperlinking someone else's work as part of your business or advertising methods, it is always better to get a license from them.

- A content creator/owner of the copyrighted work may have imposed their own terms and conditions on the website that you are hyperlinking to which means that despite being freely accessible, the contractual terms on which you are accessing it will prohibit certain use of that work. Contractual terms like this often expressly prohibit commercial use. Therefore, it is extremely important that this is taken into account and again, a license should be obtained.

- The court failed to consider what would happen if the work you are hyperlinking to was made available without the copyright owners permission. For example, if someone places a video on YouTube without a license or permission from the copyright owner. Then this will be an infringement in itself, and you will therefore be infringing work via the act of 'distribution'. This point also stands if someone that once gave permission for a video to be up then revokes that permission.

- If the copyright creator/owner of the copyrighted work has a restriction as to who can access their work using something like a paywall, a subscription or any other access limiting process, then by hyperlinking to that work, you are automatically infringing their copyright.

As you can see, there was a lot left open by the courts. This shows that copyright law is not as straightforward as some may think. Remember, even innocently hyperlinking to a Youtube Video may mean you are infringing copyright works although this would better apply to a hidden one rather than a public one.

"Get a license to be sure!"

Here at Display Rights, we are more than happy to help get you a license from one of our many partners so that you can access that copyright-protected material without having to worry about being open to future litigation.

If you feel inspired to find out more about anything we've said here, do call us on +44 1908 041290 or leave a comment below and I'll be in touch as soon as I can.