Freedom of Linking in Europe?

Recently, the European Court of Justice (ECJ) decided in Svensson et al v Retriever Sverige that links to authorized works freely available online do not infringe the E.U.-recognized exclusive right of communication to the public. The outcome accords with U.S. law and (so far) allows the Internet to continue to function. But the European high court’s reasoning raises many questions about when linking might violate copyright law that have been long resolved in the U.S., posing potential future danger to the World Wide Web.

The case involved journalists claiming that the website Retriever Sverige had improperly linked to news articles they had authored, thereby making those articles available to the public without permission, in violation of copyright law. Needless to say, if the journalists won, the entire World Wide Web would be illegal. Specifically, the Swedish referring court asked the ECJ whether linking to copyrighted materials constitutes “communication to the public” under EU copyright law, Article 3(1) of Directive 2001/29. The Swedish court’s second question was whether the answer to question 1 depends on whether the copyright owner restricts access to the work.

For the first time, the ECJ announced a rule that links communicate works to the public, which is a copyright owner’s sole prerogative under EU law.  However, the court said that those links are not infringing and do not need additional authorization from the copyright owner unless they make the work available to a new public (par. 25-28). A new public must include people other than those who can access the work thanks to the rightsholders’ conduct. In other words, if the rightsholder publishes the work online, anyone can link to it without further permission.

Next, the ECJ decided that for copyright purposes, there is no difference between a link which takes the user to another website where the work (presumably) is lawfully displayed and one which embeds the work, giving the impression that it is appearing on the linking website. Because only a link that communicates the work to a “new public” infringes the copyright holders’ exclusive right (par. 30), copyright law does not offer any redress for this practice. However, the ECJ does not exclude the possibility that courts may still sanction this practice under some circumstances as a form of unfair competition.

Finally, the ECJ decided that Member States are not entitled to give wider protection to authors by defining “communication to the public” more broadly than is done in the InfoSoc Directive (par. 33-41).

While some celebrated the Svensson ruling protecting linking, the court’s reasoning is troublesome. It holds that linking to protected works “must be considered to be ‘making available’ and, therefore, an ‘act of communication’ . . .” (par.20), without any real explanation of this principle. In contrast, the European Copyright Society Opinion on the Svensson case would treat a link as a reference, as U.S. law does.

The ECJ’s failure to adopt the European Copyright Society’s and U.S.’s view leaves open many complicated questions that people considered long settled, raising serious concerns for anyone who uses the Internet.

For example, what if the copyright owner removes the linked-to material, or puts it behind a paywall? In practice, the links will probably not infringe, because they will be dead, or will direct the web user to the paywall.

Next, what if the rightsholder published the work on one website, but there’s an infringing copy on another site? A user links to the infringing rather than authorized copy. Is the linker infringing? We don’t know because the Court didn’t answer the question of whether links to infringing materials are infringing. But there’s an argument that the link does not make the work available to a new public, so it is not infringing. The person who posted the infringing copy would, however, be infringing, because the “new public” rule is a special rule just for links.

Does this answer change if the copyright owner in this scenario takes the authorized copy down? At this point, the work is no longer available on the site where it was initially communicated or it is available on that site only to a restricted public, “while being accessible on another Internet site without the copyright holders’ authorization” (par. 31). According to the court’s reasoning, the link that was once arguably legal might suddenly be infringing.

If this interpretation of the ECJ’s decision is correct, websites could have to constantly monitor that materials they link to are still freely available on some authorized website. So the initial coverage celebrating this opinion by saying that the ECJ did not break the Internet seems premature.

The ECJ’s ruling that linking is a regulated communication to the public could interfere greatly with the operation of the Internet. Linking is the heart of the World Wide Web. Any ruling that leaves open the possibility that links might require copyright owner authorization could interfere with the benefits of the Web, trap users in a net of entangled obligations, and limit public access to information and free speech.

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