The Court of Justice of the European Union (CJEU), the highest court in the EU, has ruled that hyperlinks to copyright content that is lawfully online do not require the authorisation of the copyright holder and do not constitute copyright infringement in themselves. The ruling in Nils Svensson and Others v Retriever Sverige responded to a demand from newspapers to prevent news aggregators, linking to the newspapers’ websites.
The Court based its ruling on the fact that the news sites had already made their articles available to the general public, and aggregator Retriver Sverige was not communicating the copyright works to a “new public”. Had the newspapers held their articles behind a paywall, and had the aggregator provided a means to bypass the paywall, the court said its ruling would have been different.
The court ruled that its decision applied even if, when the user clicks on a hyperlink, the article linked to is displayed as though it appeared on the aggregator’s own site.
The Court also ruled that the Member States do not have the right to give wider protection to copyright holders by broadening the concept of ‘communication to the public’. That would have the effect of creating legislative differences and, accordingly, legal uncertainty, when the directive at issue is specifically intended to remedy those problems
This ruling will be seen by many as favourable to hosting providers and news aggregators, and unfavourable to copyright maximalists. However, not everybody takes that view on a closer reading: as part of its ruling, the Court decided to treat hyperlinks as a “communication to the public” of the copyright work, an activity controlled by copyright law. It then ruled the communication was covered by an exception to the exclusivity principle in copyright law. Copyright specialist Innocenzo Genna argues that this route could lead to greater control by copyright holders, as linkers are only protected when they fit within the definition of the exceptions. A better outcome for linkers would have been if the court had ruled that linking to copyright material was not a communication to the public of the copyright work at all, but merely pointing the user to where that copyright work is being communicated.