The meaning of links

Whether the presence of an internet hyperlink could potentially be a copyright-infringing communication is a continuing question for the European courts. Peder Oxhammar and James Whymark of Baker & McKenzie report.

There was a hope that the Court of Justice of the European Union’s (CJEU) ruling in C More Entertainment v Sandberg would provide some further clarity on the scope of the communication to the ‘public’ law and continue the development along the line seen in cases including Nils Svensson and others v Retriever Sverige AB (Svensson), and BestWater International GmbH v Michael Mebes and Stefan Potsch (BestWater).

But, the key question that the C More judgment should have answered still relates to the copyright world and the result we have, arguably, provides the answer to a question which no-one is really asking.

In this article we look at whether the decision, handed down in March, really moves the needle and, if so, whether it moves it in a direction that makes a difference.

In order to understand the decision, and importantly what it could (or should) have been, it is useful to look at the line of cases relating to the law on hyperlinking. Hyperlinking (providing links to third party content) has long been part of the make-up of the internet and forms a fundamental part of online interactions.

However, as is often the case with copyright law, the legal framework regarding copyright protection and infringement has lagged behind as technology has advanced.

The Svensson case provided the first opportunity to consider whether the ubiquitous practice of creating hyperlinks would engage the “communication to the public” right as specified under article 3(1) of the EU’s Copyright Directive, aka the Information Society, or InfoSoc Directive.

As links are used so freely as an essential part of the functionality of the web there was a real risk that the CJEU could end up handing down a decision that would, in effect, break the internet.

Thankfully some sense prevailed and the decision tried to strike a balance between protecting right owners, so that they are able to continue to exploit copyright works online, and create a restriction on access to works that are already freely available.

The CJEU held that a clickable link can, at least in principle, constitute a communication to the public. The critical question in Svensson was however whether this communication was to a public.

The court reinvigorated the previous distinction between the communication to the same public or a different public. Where a work is published first online and a hyperlink is created to that work, this would constitute communication via the same technical means of transmission and, as such, is permissible under the Svensson judgment.

Where the means of transmission changes (for example where the original source of the work was a broadcast which was then streamed via the internet) then a link to that retransmission would constitute an infringing communication to the public.

The subsequent decision in BestWater confirmed that the same approach would be adopted for other forms of online linking, such as framing or deep linking. However, in both Svensson and BestWater the underlying copyrighted work had been made freely available to the public and the links and framing of that work did not change the form.

What is freely available

The remaining question, one to which it was hoped C More would provide the answer, was whether the same rationale of providing access to a ‘new public’ rang true when the link provided access to a work that was not freely available.

The facts seemed to provide an opportunity to answer this question.

C More Entertainment is a pay-TV station which broadcasts live ice hockey games from its website.

Users pay a per-game fee of approximately £7 ($10) per game. The defendant, Linus Sandberg, posted links on his website which circumvented C More’s paywall and allowed users to access the ice hockey games for free.

C More brought proceedings against Sandberg in the Swedish courts. The case made its way all the way up to the Supreme Court of Sweden which referred a number of questions to the CJEU.

Originally, five questions were handed to the court:

1. Does the expression “communication to the public”, within the meaning of article 3(1) 1 of the Information Society Directive, include measures to make available on a website open to the public a clickable link to a work which is broadcast by the owner of the copyright in that work?
2. Is the manner in which the linking is done relevant to the answer to question 1?
3. Is it relevant if the access to the work to which the linking is done is in any way restricted?
4. May member states give wider protection to the exclusive right of right owners by enabling “communication to the public” to cover a greater range of acts than provided for in article 3(1)?
5. May member states give wider protection to the exclusive right of authors by enabling “communication to the public” to cover a greater range of acts than provided for in article 3(1)?

Of most interest was question 3 and whether it is still relevant if access to a work to which the linking is done is in any way restricted.  This was because the underlying work in C-More was restricted unlike in Svensson and BestWater It was thought that C More might clarify this situation.

Indeed, many predicted that the fact that the paywall operated by C More had been circumvented would be an important distinguishing factor.

Unfortunately, following the decision in Svensson (which occurred before C More was handed down) the CJEU invited the Swedish courts to reconsider the questions provided to it and it was confirmed that only question 5 required further determination by the CJEU.

“In Svensson, the CJEU held that ‘the provision on a website of clickable links to works freely available on another website does not constitute an act of communication’.”

No detailed reasoning was given apart from confirming that the CJEU’s judgment in Svensson had seemingly answered questions 1 to 4.

This is unfortunate because (as will be seen from the remainder of this article) it does not provide us with a comprehensive determination on this key point and the limitations on the scope of the question offered in C More mean that some key questions remain unanswered.

In Svensson, the CJEU held that “the provision on a website of clickable links to works freely available on another website does not constitute an act of communication”.

The CJEU did not go further and explain what “freely available” means in this context. By implication, if a work is not “freely available” then the act of linking to it may constitute an act of communication to the public.

It is perhaps unfortunate that the facts in C More demonstrated a fairly clear-cut situation where a work could be classified as not being “freely available”.

This is perhaps why the CJEU did not seize the opportunity to clarify this by providing a fuller answer to the fourth question.

The question of whether a work is “freely available” is a question of fact so the CJEU may take the view that it cannot provide guidance and that this is a question for the national courts. It seems fairly clear that the links in C More were designed to be an “intervention without which those users would not be able to access the works transmitted”.

The circumvention of the paywall was also clearly deliberate so the question of the level of knowledge required of the infringer was also not considered.

The lessons of C More

The question left to the CJEU was whether a member state (in this case Sweden) could give wider protection to the exclusive right of authors by enabling “communication to the public” to cover a greater range of acts than provided in article 3(2)(d) of the InfoSoc Directive.

Article 3(2)(d) specifies that “member states shall provide for the exclusive right to authorise or prohibit the making available to the public, by wire or wireless means, in such a way that members of the public may access them from a place and a time individually chosen by them”.

This was considered against the background of the Rental Directive 2006/115, recital 16, which provides that “member states should be able to provide for more far-reaching protection for owners of rights related to copyright than that required by the provisions laid down in this directive in respect of broadcasting and communication to the public”.

The CJEU held that member states can legislate to extend the broadcasters’ right of communication to the public provided that this does not undermine the protection of copyright in that member state. This was not thought to be a surprising conclusion.

While the InfoSoc  Directive was intended to provide some harmony to the treatment of copyright works (in this case in respect of the rights of broadcasters) it was not designed to preclude member states from offering wider protections.

The InfoSoc Directive provided only partial harmonisation in that it did not harmonise acts that fell outside its provisions. The CJEU also considered in this context the terms of the Rental Directive which covered similar ground in respect of the right to communicate to the public.

Recital 16 of the Rental Directive expressly stated that member states should be able to give wider protections in respect of broadcasting and communication to the public.

Following this rationale the CJEU found that article 3(2) of the InfoSoc Directive did not affect the option for member states to widen broadcasters’ exclusive right of communication to the public (as set out in article 8[3] of the Rental Directive).

As the CJEU did not answer the “freely available” question the case unfortunately has little or no practical impact, neither in the EU nor in the referring member state Sweden.

While the decision does continue the line of cases considering the scope of the communication to the public right in the context of linking and framing, it unfortunately does not advance the arguments very far.

The question remains open as to what constitutes “freely available” in this context and whether linking to infringing content will be treated differently by the CJEU and national courts.

It is hoped that these questions may be answered by the CJEU following the request from the Dutch courts in Playboy Enterprises/Sanoma Media v GeenStijl.nl.

Specifically, the CJEU has been asked for a ruling on whether a hyperlink to a third party site constitutes copyright infringement where that site is freely accessible but has placed material online without the consent of the copyright owner.

The court has also asked whether it is important that: (i) the party hyperlinking to the content is aware or should be aware that the copyright owner hasn’t authorised the placement of the work; and/or (ii) the hyperlink facilitates the accessibility of the material where the original posting is difficult for the average internet user to find.

These appear to be the key questions that C More failed to address.

So, while C More assisted in the legal narrative on the treatment of links, the story is not over.

Peder Oxhammer is a partner at Baker & McKenzie in Stockholm. He can be contacted at: peder.oxhammar@bakermckenzie.com

James Whymark is a senior associate at Baker & McKenzie in London. He can be contacted at: james.whymark@bakermckenzie.com