Common Sense as EU Court Moves to Protect Free Use of Website Links

The European Court of Justice (ECJ) has ruled that providing a link (hyperlinks) between one Internet website and another does not equate to copyright infringement, which is a victory for common sense. Indeed any ruling in the opposite direction would have been almost unworkable to enforce. But there is a caveat in the ruling.

The court correctly recognised that anybody who puts content on the public Internet is effectively making it available to the whole of the online world and that attempting to create a walled garden approach through law, which would stop others linking to the content without first getting permission from a copyright holder, was not supportable.

Indeed everybody knows that simple linking between websites and online content is a fundamental part of how the Internet works. For example, this article contains a link going to the ECJ’s website and if you suddenly created a law that said you couldn’t do that anymore, without the remote sites permission, then there would be all sorts of chaos (imagine the admin!).

However EU law does allow authors an exclusive right to authorise or prohibit any communication to the public of their works and the court did take account of that. The ruling, which stemmed from Sweden where several newspaper journalists took exception to a website that was providing links to their stories, will still allow a copyright holder to potentially take action if somebody links to subscription-only content.

Michael Gardner, Head of Intellectual Property at London Law Firm Wedlake Bell, said:

“This judgment seems on the face of it to be a common sense ruling. 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.

But it confirms that the common practice of providing links to third party content that is already freely available, is not an infringement. However, there remain some potential issues and unanswered questions.”

At this point it’s crucial to note that the ruling isn’t saying websites can’t link to an article on The Financial Times (paywall). The reason for this is that such linking would only require permission if the link itself allowed you to access the full article (i.e. not just the public summary) without a subscription, which is very unlikely to happen unless it’s a deliberate hack or perhaps a mistake by the publisher.

ECJ Ruling (Internet Hyperlinks)
http://curia.europa.eu/juris/document/document.jsf?text=&docid=147847..