A hyperlink (or simply a link) contains a hypertext that refers to a website on the Internet. This is usually a text, but an image can also be used as a hyperlink. In recent case law, the question has arisen whether hyperlinks infringe copyright.
Swedish case law
In a Swedish case, a group of journalists published articles on the Göteborgs Posten website. A Swedish search engine – Retriever Sverige AB – made the articles available via links on its website without paying the journalists a fee. The journalists disagreed with this and started legal proceedings. Their argument is based (among others) on the position that the usage of the hyperlinks infringed their copyright.
In the first instance, the court dismissed their claim. The Swedish court ruled that there is no disclosure concerning the meaning of copyright. Therefore no copyright infringement exists. The journalists subsequently appealed to the Swedish Supreme Court.
Request for a preliminary ruling
During the appeal proceedings, Retriever Sverige argued that it only refers internet visitors to websites where the articles can be found. The search engine users can decide for themselves whether or not they read the articles. In addition, it is clear to visitors that they are being referred to articles of Göteborgs Posten.
The Swedish Supreme Court considers this a difficult issue. It has therefore decided to ask the European Court of Justice (ECJ) for an interpretation via a preliminary ruling. A preliminary ruling is where a court asks a question of law to a higher court (in this case the ECJ) regarding the interpretation of a legal rule. The answer by the Court is binding. This means that the Swedish Supreme Court is required to comply with the answer given by the ECJ.
The Swedish Supreme Court referred four questions for a preliminary ruling, which can be found on the European Court of Justice website.
On the 13th of February 2014, the European Court of Justice decided that, in circumstances such as in this case, hyperlinking cannot be considered a copyright infringement. This decision was primarily based on the fact that the link was not directed at a new target group. After all, the online articles of the Swedish newspapers were already freely accesible. Therefore, the hyperlink provided nothing more than was already available online.
The Court’s decision will have a lot of impact, since hyperlinking can consist of a link to streams on services on third-party websites. To illustrate: say that website A posts a link to an article on website B where an image went unsourced. Could website A be held liable of copyright infringement?
The Court of The Hague has already applied the decision of the ECJ in their own lawsuits, on the 11th of January 2017. Nederland FM, facilitator of hyperlinks to streams on websites of radio stations, won the case against SEM, an organisation responsible for collecting royalties for musicians.
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