Copyright: Europe Explores Its Boundaries: Part 1: Link Hubs

INTRODUCTION

This year, as the world celebrates the 25th anniversary of the World Wide Web, the Web's founder, Tim Berners-Lee, has called for a fundamental reappraisal of copyright law. By coincidence, this year we also anticipate a rash of UK and European legislative developments and court decisions centring on copyright and its application to the Web.

In our "Copyright: Europe Explores its Boundaries" series of posts—aimed at copyright owners, technology developers and digital philosophers alike—we will examine how UK and European copyright is coping with the Web and the novel social and business practices that it enables.

HYPERLINKING AND LINK HUBS

Everyone that uses the Web uses hyperlinks, and most of us may never consider whether we need permission to share a hyperlink with our friends and colleagues. As we know, hyperlinking is fundamental to the working of the Web.

However, content owners, such as film distributors, music companies, sports rights holders and owners of literary works, are deeply concerned that certain uses of this fundamental Web tool are exposing their copyright-protected works to damaging and unauthorised use. This is because the ability to hyperlink has led to the emergence of sites that host collections of hyperlinks to third party content ("Link Hubs"). And many of these Link Hubs have achieved notoriety by providing access to precisely the kinds of content that rights holders are keen to protect (think Napster, think Megaupload...).

Perhaps surprisingly, until very recently it has been unclear whether using this fundamental Web facility to link to third party content actually required the permission of the copyright owner of the linked content. A recent decision by the EU's highest court, the Court of Justice of the European Union (CJEU), has now clarified the position.

SVENSSON vs. RETRIEVER SVERIGE

In the high profile case of Case-466/12 Svensson & Others v. Retriever Sverige AB ("Svensson"), the CJEU was asked to decide whether Retriever Sverige, the operator of a Link Hub, had acted in breach of copyright law by providing links to news articles made freely available on the website of the Göteborgs-Posten newspaper. Svensson and other journalists said that Retriever Sverige's inclusion, on its website, of the link to their articles infringed their exclusive right to make the articles available to the public.

The question before the CJEU focused on whether or not the provision of a clickable link by...