How does the humble hyperlink fit into copyright law? Back in 1996 the World Intellectual Property Organisation approved a treaty designed to bring copyright law in line with the latest technological developments such as the internet. This included a newly devised right of communication to the public, granting copyright owners the right to decide the time and manner in which they made their content available to the public. The idea was to allow rights holders to stop others from making infringing copies of their works available online.
In the years since, courts around the world have interpreted this right as a means to stop online copyright infringement, as it was intended. But some have begun to interpret the right too broadly, arguing that any hyperlink to copyrighted material – not just copies of the material – posted by someone other than the creator is a “communication to the public” and so could be considered breach of copyright.
This doesn’t just refer to creative works like films, music or literature. Practically everything is someone’s copyright unless otherwise excluded, which means that under the strictest interpretation, linking to any website containing any text or imagery would be a copyright infringement.
Some creators have gone to court making the case for this interpretation, but thankfully the courts have tended to take a much narrower view – recognising quite rightly that any restriction on hyperlinking would seriously undermine how the world wide web works. For example, in the landmark case of Svensson v Retriever Sverige, the Court of Justice of the European Union decided that if the content had been made available to the public already, then providing a web link even without the permission of the author could not amount to copyright infringement. Other cases have helped to clarify this reading, for example C More and BestWater.
However, following the leak of a European Commission draft proposal, some have raised the alarm that things are about to change for the worst.
According to the leaked draft, copyright holders are concerned about their content being monetised by others, without licensing, through content aggregation. This is where a rights holder or creator releases their own content online, which is then aggregated by a third party, re-packaged and re-sold.
Under the existing interpretation of the right of communication to the public, if a work has been made available online, linking to it does not expose it to new audiences, so the right remains intact and linking is not an infringement. But the commission proposes to overhaul these rules in order to harmonise them across the EU now that some member states have tried to solve this issue on their own.
For example Spain introduced a disastrous “Google Tax” law, which forced news aggregators such as Google News to pay royalties if they used content from Spanish publishers. This led Google to simply stop using Spanish media, meaning publishers were hit by decreased readership and advertising revenue. News media in Germany also pressed for a change of law to prevent this, which similarly backfired.
Spanish media hit by ‘Google Tax’ law.
The web must be protected
So I’m happy to report that hyperlinking without permission is not about to be made illegal, and many reports that are likely to surface in the following weeks are exaggerated. But there is still place for concern.
Judging by the leaked draft, the commission seems intent on overhauling the right of communication to the public in a way that could still affect how the web works by making it more difficult to aggregate content automatically without permission. This would affect commercial sites that rely on bringing together data from various sources and re-packaging them for a different audiences. This of course would affect sites like Google News, but there are many other sites that aggregate data in this way, for example companies that specialise in providing targeted market intelligence to tailored audiences. Any sort of commercial scale content management would become far more difficult to operate.
In my view the system is not currently broken, and there is little justification to change the law and bring about a more strict interpretation of the right. On the contrary, evidence from places such as Spain indicates that it could have considerably damaging effects on small and medium-sized publishers. The Google Tax in Spain reportedly costs Spanish publishers €10m a year as a result of income lost through fewer visitors.
The worst-case scenario would be for the wrong approach adopted in Spain and Germany to become the blueprint applied to the rest of the EU under the pretence of harmonisation. Perhaps the commission should turn the Court of Justice interpretation in the landmark Svensson case into law and settle the matter once and for all, instead of pandering to copyright holders when they turn up with begging bowls demanding a change in the law without any evidence change is needed.
Andres Guadamuz, Senior Lecturer in Intellectual Property Law, University of Sussex
This article was originally published on The Conversation.
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