The European Copyright Society, a group of prominent European legal academics, has released an opinion stating that linking to or framing copyright infringing content does not itself constitute infringement.
The Society argues that a hyperlink is not a “transmission to the public” as defined in Article 3(1) of the Information Society Directive, and therefore does not constitute infringement.
Clearly, hyperlinking involves some sort of act – an intervention. But it is not, for that reason alone, an act of communication. This is because there is no transmission. The act of communication rather is to be understood as equivalent to electronic “transmission” of the work, or placing the work into an electronic network or system from which it can be accessed.
This is because hyperlinks do not transmit a work, (to which they link) they merely provide the viewer with information as to the location of a page that the user can choose to access or not.
The opinion concerns Case C-466/12 Svensson, currently before the European Court of Justice, which asks whether the news aggregator Retriever is guilty of copyright infringement by virtue of having linked to various news sources.
The ECS also highlights the significance of this question for the health of the Web and for Europe’s online economy.
The legal regulation of hyperlinking thus carries with it enormous capacity to interfere with the operation of the Internet, and therefore with access to information, freedom of expression, freedom to conduct business, as well – of course – with business ventures that depend on these types of linkages. Europe has developed a significant sector of SMEs, many of whose web operations depend on the use and provision of links. The Court must not under-estimate the importance of its ruling in this case.