European Copyright Society says that linking is not communication

Daydreaming Priscilla spent Valentine's
day thinking about Svensson

A few months ago, The 1709 Blog and the IPKat reported news of another case referred to the ever-active Court of Justice of the European Union (CJEU), seeking clarification as to the scope of the right of communication to the public within Article 3 of Directive 2001/29/EC (the InfoSoc Directive).

This is Case C-466/12 Svensson and Others [according to well-informed sources, despite hints to the contrary, for once this is not a copyright case about football], a reference from the Svea hovrätt (the Svea court of appeal is one of the six appellate courts in the Swedish legal system) asking the CJEU whether a clickable link can be considered tantamount to an act of communication to the public within Article 3(1) of this directive.

To be precise, the Swedish court referred the following questions to the CJEU:

1.   If anyone other than the holder of copyright in a certain work supplies a clickable link to the work on his website, does that constitute communication to the public within the meaning of Article 3(1) of Directive 2001/29/EC ...? 

2.   Is the assessment under question 1 affected if the work to which the link refers is on a website on the Internet which can be accessed by anyone without restrictions or if access is restricted in some way?

3.   When making the assessment under question 1, should any distinction be drawn between a case where the work, after the user has clicked on the link, is shown on another website and one where the work, after the user has clicked on the link, is shown in such a way as to give the impression that it is appearing on the same website?

4.   Is it possible for a Member State to give wider protection to authors' exclusive right by enabling 'communication to the public' to cover a greater range of acts than provided for in Article 3(1) of Directive 2001/29/EC ...?

The case is a tough one and its outcome promises to have a significant impact on EU Member States, as similar issues are currently under consideration also at the national level.

Professor Lionel Bently

The 1709 Blog's friend and well-known academic Professor Lionel Bently of the University of Cambridge has brought to this blogger’s attention that the European Copyright Society has just issued an Opinion which sheds some light on this reference from Sweden. 

As readers might be aware of, the European Copyright Society (ECS) was founded at the beginning of 2012 with the aim of creating a platform for critical and independent scholarly thinking on European copyright law. ECS members are renowned scholars and academics from various countries of Europe, seeking to promote their views of the overall public interest. The Society is not funded by, nor has been instructed by, any particular stakeholders.

The Opinion, which has been signed by 17 leading European copyright scholars, is premised on the consideration that:

"Although hyperlinking takes many forms and has multiple functions, there can be no doubt that it is the single most important feature that differentiates the Internet from other forms of cultural production and dissemination. Hyperlinking is intimately bound to the conception of the Internet as a network, and hyperlinks constitute paths leading users from one location to another ... 
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."

As summarised by Lionel,

There are other instances when linking
does not necessarily involve an act of communication
to the public (and does not require
an internet connection either)

"The Opinion argues that hyperlinking in general should be regarded as an activity that is not covered by the right to communicate the work to the public embodied in Article 3 of Directive 2001/29. We offer three reasons for this conclusion:

(a) Hyperlinks are not communications because establishing a hyperlink does not amount to "transmission" of a work, and such transmission is a pre-requisite for "communication";

(b) Even if transmission is not necessary for there to be a "communication", the rights of the copyright owner apply only to communication to the public "of the work", and whatever a hyperlink provides, it is not "of a work";

(c) Even if a hyperlink is regarded as a communication of a work, it is not to a "new public."

However, the Opinion leaves open the possibility that in some circumstances creating hyperlinks might give rise to liability, or be part of a series of acts that gives rise to liability. In fact, as is clear from national case-law, different forms of hyperlinking may give rise to accessory liability (particularly in respect of knowingly facilitating the making of illegal copies); liability under unfair competition law; infringement of moral rights; and possibly for circumvention of technological measures. Only the last of these has been the subject of harmonization at a European level, and thus falls within the competence of the Court of Justice."

As highlighted by Jeremy on the IPKat, the outcome of this case is keenly awaited by all those good souls who are involved in blogging-related activities. As bloggers, we hyperlink all the time and we indeed consider hyperlinks as tools which allow us to either provide appropriate references which support or elaborate on our statements or direct readers towards items which they can find interesting. 

The full text of the ECS Opinion is available here.