Update On Copyright

Carry On Linking

The Court of Justice of the European Union (CJEU) handed down its decision yesterday on whether providing links to copyright protected materials located on other websites is a copyright infringement.

Impact

It is now clear that linking to freely available content on another website is not a copyright infringement.

The position is different in relation to material which is not freely available, such as pay-protected content. By providing a link to such material and circumventing a paywall, it is now clear that copyright in that content will be infringed.

The middle ground is less certain - whether there will be an infringement in relation to material which is freely available but governed by strict terms of use, such as licensed content where the licence limits publication to one site or prohibits commercial use.

Basis for the decision

The basis of the CJEU's ruling is what amounts to "communication to the public". This is an act reserved to copyright owners in relation to a wide range of works, including literary, musical, artistic works and films. EU law interprets communication widely in order to give a high degree of protection to copyright owners. It covers "any communication to the public" and "making available to the public by electronic transmission". UK law defines "communication" as including "broadcasting" and "making available".

There is no doubt that in providing a link to material, that material is made available to the public - but it does not necessarily infringe. The key question is who that public is. The CJEU says it must be a "new public" and this is how it arrived at the conclusion that linking to freely available material will not infringe copyright. It is not being communicated to a "new public".

So what is a "new public"? This is described by the CJEU as a public which was not envisaged by the copyright holder when communication to the public was initially authorised. If material is made freely available to all users of a website, it must be envisaged that the potential recipients of the material could be infinite in number and therefore include people viewing the material as a result of clicking on a link provided on another site.

Significantly, the CJEU said that the result would be the same even if the material were in some way framed on...