Hyperlinking – Copyright implications
In recent months, there have been a number of Court of Justice of the European Union decisions relating to the copyright implications of hyperlinking.
These decisions consider Article 3 of Directive 2001/29/EC of the European Parliament and the Information Society Directive which requires EU Member States to provide copyright holders the exclusive right to authorise or prohibit any communication to the public of their works. These rights have been implemented in the UK through Sections 16 and 20 of the Copyright, Designs and Patents Act 1988.
“Act of Communication”
Recent cases have broadened the scope of “an act of communication” for the purposes of copyright infringement, suggesting that liability can arise from linking to copyright protected work published without the right holder’s consent.
It is therefore important to be aware of the following potentially infringing acts of communication:
i. Posting links to sites containing copyright infringing content or links to content not otherwise freely accessible (e.g. circumventing a paywall without consent of the right holder).
ii. Offering hardware with software containing links to copyright infringing content
iii. Supplying any information pointing to ways of accessing copyright protected content (including indexing metadata)
iv. Providing internet access to sites where hyperlinks are provided to copyright infringing content (applicable to ISPs)
However, there will not be an act of copyright infringement where
i. a link is provided without an intent to make profit; and
ii. it was not known (or could not have reasonably have known) the content infringed copyright.
Knowledge, for the purposes of copyright infringement by way of hyperlinking, is presumed when acting for a financial gain.
This leaves many corporate entities, particularly those with a social media presence, in a difficult position. Questions remain over the breadth of the “financial gain” exception, therefore caution should be given when
i. Posting any links with a view to financial gain where there is a connection between the link and financial gain
ii. Linking for the purposes of creating brand awareness, advertising or merely to drive traffic to the brand even where the hyperlink posted has no direct relevance to the furthering of that gain.
Social media managers and corporate communications in particular must therefore take extra care when posting hyperlinks on any platform.
To avoid risk of being directly liable for copyright infringement, it is important to check the content of any site linked to and to conclude on a reasonable basis whether or not there is a copyright infringement on that page.
Having effective systems in place to vet all hyperlinks on all platforms would help to minimise such risks. This extends to those providing hardware – if such hardware contains any pre-installed software providing links, those links must be carefully checked.
Brexit and the Future
The recent CJEU decisions remain applicable in light of Brexit; not only do they reflect the current state of the law until Brexit, but as the Great Repeal Bill will be set to freeze EU law into UK law at the time of Brexit, this law will likely apply post-Brexit.
This area of copyright law is developing rapidly, once the UK leaves the EU, it will continue to change at the CJEU. Until such cases reach the Supreme Court, the UK in the meantime must rely on the CJEU law as it stands.