Linking isn’t illegal; internet saved(?)

Is it lawful to post a link to someone else’s website, or does it infringe copyright?

It will probably come as a surprise to most people – even to most lawyers – that this could still be an open question in 2014. After all, if linking to other sites were an infringement, and if (*BIG* if) that were to be enforced on a wide scale, then the internet as we know it would come to a juddering halt.

Conversely, though, think of a situation in which someone sets up a website that links to hundreds of unlicensed video streams of recently-released movies, hosted by other people. The hosts are clearly infringing copyright, but should DodgyStreamsRUs.com be able to do link to them with impunity? Maybe this question of linking isn’t as straightforward as it looks.

Enter the Court of Justice of the European Union (CJEU) or, as it is more popularly known, the ECJ. In a long-awaited judgment, the ECJ today gave its definitive view on whether linking infringes copyright. Its conclusion (you will probably be relieved to hear) was that (generally) it doesn’t. The exception is where the linking enables people to circumvent protections on the copyright owner’s website (e.g. evading a paywall).

Now, there are a lot of legal blogs and websites out there that will go into the details of this case, the Svensson case, in far more detail and with far more expertise (see, for example, this post by Eleonora Rosati at IP Kat, or this excellent analysis from Bird v Bird). But I hope I can give a quick overview of the basis of the decision.

The main legal question at issue was whether posting a clickable link to a copyright work (such as a web page or hosted file) amounts to communicating that work to the public – which would infringe copyright if done without permission. In brief, the court concluded:

1. Yes, to post a link to a work does indeed communicate it to the public. BUT (and this is where the CJEU pulls a rabbit out of the hat to save the internet, as some might see it)…
2. …if the copyright owner has made the work freely accessible online, then anyone could already see it anyway. So linking to it doesn’t make it available to anyone who couldn’t lawfully access it already. Hence “there is no new public”. So it hasn’t actually been communicated to the public in a way which would infringe copyright. Ta-dah!

The one exception the court gives is where the link would enable users to circumvent “restrictions put in place by the site … in order to restrict public access to that work to [its] subscribers only”. In that case, the work would be made available to a new public, namely non-subscribers, and hence “communication to the public” would have occurred, and the link would infringe.

There still remain plenty of questions about how the judgment will work in practice (what is “freely accessible”? what is a “restriction”? what is “circumvention”? etc. etc.). As I see it, though, the really critical question which Svensson bequeaths to us is this: 

Does this link communicate the work to a “new public”?

I suspect that could turn out to be something of an unexploded bomb in certain circumstances.