Is hyperlinking internet content copyright infringement?Print publication
The Court of Justice of the European Union has held  that a website which redirects internet users through hyperlinks to copyright-protected works which are already freely available does not infringe the copyright in those works.
The case was brought in Sweden by journalists against a news aggregator, which linked to their articles on its website. The journalists claimed compensation for the unauthorised linking to their articles. The national court referred a number of questions to the CJEU but, in essence, the key issue was whether the provision of hyperlinks to protected works freely available on another website constituted a “communication to the public” of those works for the purpose of Article 3(1) of Directive 2001/29 concerning copyright in the information society. If the answer to this question was yes, the consent of the copyright holder would be required.
The CJEU ruled that the mere provision of hyperlinks to copyright-protected works constituted a “communication”, as the links were a means of making the works available. Further, the CJEU held that it is sufficient for “communication” that the work is merely made accessible to the public, irrespective of whether they avail themselves of the opportunity to view the work.
Therefore, the question that remained was whether such communication was a communication “to the public”. In the pivotal paragraph of the ruling, the CJEU stated that in order to be caught by Article 3(1), a communication, that covers the same works as those covered by the initial communication and made by the same technical means, must be directed to a “new public”. This “new public” is one not taken into account by the copyright holders when they authorise the initial communication to the public.
In this case, the journalists had made their content freely available on the internet. When the news aggregator made the content available through the hyperlinks, it was not making the content available to a “new public”. Accordingly, the consent of the journalists was not needed.
It appears from the judgment that the position might be different if the content in question was, for instance, password protected or available on a subscription basis only. However, where the content is freely available on the internet, it will not be copyright infringement to hyperlink to it. The ruling did not address the possible scenario of where an article is made freely available to all internet users on a website but the website contains restrictions on what may be done with the article, or situations where hyperlinks are provided to websites which had not sought permission to use a copyright-protected work from the copyright owner.
Finally, the CJEU ruled that it was not open to Member States to provide for more restrictive rules on the lawfulness of hyperlinking to third-party content than that envisaged in its ruling.
The ruling will obviously give comfort to those who hyperlink to third-party content. It is not, however, a carte blanche to do so. If the content is not freely available, linking to it could well constitute copyright infringement.
 Svensson v Retriever Sverige AB (Case C-466/12)