The European Court of Justice (ECJ) has issued a major ruling declaring that providing links from one website to another does not infringe copyright law.
The case began in Sweden when a newspaper questioned whether permission was required by another site to provide links to the articles it had produced under a term in EU law referred to as an “act of communication to the public”.
If so, the creation of links would not be possible “without the authorisation of the copyright holders” as, “EU law provides that authors have the exclusive right to authorise or prohibit any communication to the public of their works”, the court explained in its judgment.
In essence, this could mean anyone providing a link to another website would need the permission of the website owner first.
But the court said there was no copyright infringement taking place as anything published online that has the potential to be read by anyone means copyright for those readers is also implied, regardless of how a user arrives at a site.
"The public targeted by the initial communication consisted of all potential visitors to the site concerned, since, given that access to the works on that site was not subject to any restrictive measures, all internet users could therefore have free access to them," the court explained.
It elaborated that this means there is no "new public" viewing content because of links from other sites, as by putting material online anyone on the internet was assumed to be the original audience for the content.
The only exception to the ruling was that if a site provides a link to material that is not freely available online – for example, material on a subscription-only website – and that material is made viewable by the act of linking.
This means, for example, a link provided to an article on The Times, which remains behind a paywall, is not breaking copyright law. If the link somehow made the article visible without requiring a subscription, though, it would be illegal.
Michael Gardner, head of Intellectual Property at London law firm Wedlake Bell, said it was a “common sense” ruling that had benefits for all online users.
“But it confirms that the common practice of providing links to third-party content that is already freely available, is not an infringement,” he said.
“It will be something of a relief for publishers and others who make content available on the web via a subscription-only basis. Armed with this judgment, it is clear that they can take action to stop anyone else from providing links to such protected content.”
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