European Court of Justice allows free use of hyperlinks

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This article is part of our special report Innovation and the Digital Economy.

The European Court of Justice has ruled in favour of the free use of hyperlinks to online articles but the issue of remuneration remains open.

In a judgment issued on 13 February, news aggregators won an important battle when the European Court of Justice ruled that the use of hyperlinks should remain free.

In the judgment, the Court says that a website can use hyperlinks to direct users to copyrighted works freely without having to pay royalties.

The Svensson case was brought to the Swedish court by journalists from the Göteborgs-Posten newspaper denouncing the retakes of their articles as clickable links by a website owned by Retriever Sverige. This company ran a website providing press reviews to its clients in the form of clickable links to online articles on other websites.

The Swedish Court then contacted the European Court of Justice to find out whether providing such links to works available for free on another website was an act of communication as foreseen by the directive 2001/29 on copyright.

No new public

For the European Court every act of communication on a work to the public must be authorised by the owner of the copyright, but in the Svensson case, the Court considers that the redistribution of free content through clickable links does not give access to a “new public”.

Christian Soulié, a lawyer specialised in copyright issues says that “the access given to that content through another website via the considered link does not allow to establish that a new public is affected and therefore does not justify that a new authorisation is required from the holder of the exclusive rights”.

The Court's judgment is not the first to allow a website to bypass rights holders to redistribute content via hyperlinks, a technique widely used by Google or Yahoo.

The Court considers that hyperlinks are a means to navigate the internet and that it is impossible to hinder their use each time with a prior authorisation from the rights holder, deplores Huber Tulluet, director for legal affairs at the association of authors and composers in France.

Since the judgment of the court is about news content, it opens a loophole that affects all protected content online.

“The judgment could equally apply to the music of films,” Tulluet said.

Scope limited to free content

The novelty in the Svensson case is that web users clicking on the hyperlink think they are still on the original site while they have been in fact redirected to the newspaper’s website. The blurred visual identity is not a violation of copyright either according to the court.

“That the use of any content is valid even if the user clicking on the hyperlink is not aware of being redirected to another website is surprising to me,” Tulluet said.

However, the judgment refers only to free content and totally free access, French Socialist MEP, Françoise Castex said. “In fact the scope of this decision is limited. It is still not legal to link to a work that the author did not want to diffuse freely in the internet or no longer wants to give free access to it,” she explains.

In France, the issue of referencing press articles via hyperlinks had triggered a war between editors and Google in 2012. The former were pushing for a law requiring Google to pay for the use of their content notably on Google News. Google finally agreed to provide financing of some €60 million for a fund for digital innovation of the press.

Germany went further by adopting a law requiring news aggregators to pay for articles taken from online newspapers.

Income issue

The European Court however failed to decide on the issue of redistribution of the produced value by online content. Should a link allowing access to content be paid?

Despite the fact that media content is free and accessible, advertising revenue coming from the reuse of content remains a central problem for rights holders.

“If the website using the links derives advertising revenue, the content creators cannot get that money which remains in the pockets of the company creating the hyperlinks,” Tulluet regrets, adding that “the judgment does not address this central question yet”.

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