Hyperlinks And Copyright Infringement: Svensson

In a recent decision, the Court of Justice for the European Union has addressed whether providing a hyperlink can be an act of infringement under the EU Copyright Directive.

Simple links, deep links and framing

Hyperlinks are now a routine part of internet life for most computer users. However, some may not be aware that there are terms for the different types of hyperlinks. The three most common are as follows.

First, a simple hyperlink (or simple link for short) is a link to the homepage of the linked site. For example, www.wedlakebell.com.

Second, a deep hyperlink (or deep link for short) is a link which takes the user directly into part of the linked site so that the homepage is avoided. For example, http://www.wedlakebell.com/intellectual-property.

Third, there is a linking technology called framing which allows a website to appear to host the content of another website. The user will therefore think he is viewing the linked third party content without leaving the original site.

Thank the Swedes

Nils Svensson is a journalist who, along with his three co-claimants, had his articles published by the Swedish newspaper, Goteborgs-Posten, on their website which was freely available to the public.

While the journalists had given permission for Goteborgs-Posten to publish the articles, when they found out that a Swedish media monitoring company called Retriever had been providing its subscribers with deep hyperlinks to the online articles, they issued copyright infringement proceedings against the company on the basis of Article 3(1) of the EU Copyright Directive which gave them the exclusive right to authorise or prohibit any communication to the public of the articles, whether in print or online.

The Swedish Courts

At first instance in the Swedish District Court, the judge considered that deep linking did not amount to a communication to the public and therefore Retriever's reference linking did not fall within Article 3(1).

Thus, the journalists' claim failed. However, unhappy with the decision, they appealed to the Swedish Court of Appeal, who almost straightaway and without expressing any view, referred the matter to Europe's highest Court, the CJEU.

The debate before the CJEU decision

Prior to the CJEU's decision, there had been some considerable EU-wide debate on the subject.

In particular, the European Copyright Society (i.e. European academics), published an opinion in early 2013 which said that in their view simple linking did...