Hyperlinking and copyright law: when does the copyright holder have a say in it?

The functioning of the World Wide Web is in many ways dependent on the use of hyperlinks. Many of those hyperlinks refer to works protected by copyright. In his recent Opinion, Advocate General Szpunar has considered which kinds of hyperlinks should be regarded as a communication to the public that require the copyright holder’s prior authorisation.

Dispute giving rise to the preliminary question

Stiftung Preußischer Kulturbesitz (‘SPK’), a German foundation, operates a digital library devoted to culture and knowledge. The website for its database contains links to digitized content stored on the internet portals of participating institutions, and displays only a thumbnail (a smaller version of the original image). The database uses works with the copyright holders’ authorisation.

VG Bild-Kunst, a copyright collecting society for the visual arts in Germany, licenses the use of its catalogue of works in the form of thumbnails to SPK. However, it requires SPK to apply effective technological measures against the ‘framing’ by third parties of the thumbnails. (Advocate General Szpunar defines ‘framing’ as “a technique which allows the screen to be divided into several parts, each of which can independently display a different webpage or internet resource. Thus, the original webpage may be displayed on one part of the screen, while a webpage or other resource from another website is displayed on the other part.”)

SPK, having the opinion that this condition violates copyright law, initiated legal proceedings in Germany. The case went all the way up to the Bundesgerichtshof, which went knocking on the door of the Court of Justice of the European Union, serving it with some fresh questions regarding hyperlinking, embedding, framing, protection measures and the illustrious concept of ‘communication to the public’.

Advocate General Szpunar’s Opinion: “Court of Justice, please clarify your case law”

Advocate General Szpunar is no stranger to making head-turning Opinions, and this time again he has not disappointed by asking the Court of Justice to clarify its already existing case law regarding hyperlinks (Opinion of 10 September 2020, in case C-392/19, EU:C:2020:696).

So what does that existing case law regarding hyperlinks tell us, exactly? The Advocate General has summarised the present state of affairs.

Communication to the public

Before going over the case law concerning hyperlinks, it is important to note that the copyright holder enjoys the exclusive right to communicate his or her works to the public. This means that (i) a communication (ii) to the public of a copyrighted work requires the copyright holder’s authorisation. When the copyright holder has already communicated the work to “a public”, his or her consent is required for each further communication, made by the same technical means, of the same work to a “new public”. Posting a work on the internet (initial communication), and linking to it (secondary communication), will be considered to be done by similar technical means. A public is new, if the copyright holder did not take it into account for the initial communication.

Case law of the Court of Justice concerning hyperlinks

In Svensson (13 February 2014, C‑466/12, EU:C:2014:76) and GS Media (8 September 2016, C‑160/15, EU:C:2016:644, paragraph 43), it was ruled that a hyperlink to a work constitutes an act of communication. However, if the work is already freely-available on a website with the copyright holder’s consent, then the public is not new. The copyright holder is assumed to have targeted all internet users. If, on the other hand, restrictions imposed by the copyright holder on the access are circumvented, then the hyperlink does reach a new public, so that the copyright holder’s consent is required.

In BestWater, the same was ruled for hyperlinks that make use of framing (21 October 2014, C-348/13, EU:C:2014:2315).

In GS Media (8 September 2016, C‑160/15, EU:C:2016:644, paragraph 49-51), it was decided that when the hyperlink refers to a work that has been made available without the copyright holder’s consent, the exclusive right of communication to the public is affected. This is at least the case if the user was aware, or should have been aware, of the lack of consent. For users acting for financial gain, this knowledge is assumed.

Proposal for a clarification

Advocate General Szpunar has proposed making a distinction based on the type of hyperlink.

On the one hand, automatic links to copyrighted works (i.e. links that automatically display the works on the website linking to them, without any further action having to be taken by the web user visiting this website) would require the consent of the author. The public targeted by this link, namely the public of the second website, is a new public, different from the public targeted by the initial communication by the copyright holder, namely the public of the first website. This is because this public of the second website is not even aware that the work is linked from another website, and as such, does not knowingly visit this first website. This is a clear departure from the case law of the Court of Justice (Svensson, 13 February 2014, C‑466/12, EU:C:2014:76, paragraph 25-27; BestWater, 21 October 2014, C-348/13, EU:C:2014:2315, paragraph 15-16) that ruled that an initial communication on a website targets all internet users (and not just the public of the website at hand). Technical measures taken to prevent automatic linking may not be circumvented, according to Advocate General Szpunar, as the automatic linking requires the copyright holder’s prior authorisation.

On the other hand, a permission would not be necessary for a clickable link while using framing if the linked works have been made freely-available to the public on the linked website with the copyright holder’s consent. In that case, there is no new public. The public at hand is the initial website’s public, as it is in fact directed to this website by means of the link, and accesses it. No permission is required even if technological protection measures against the use of framing have been circumvented because technological protection measures can only be used to prevent acts that require the prior authorisation (which is not the case for such clickable links).

Patiently waiting

Now we will have to wait and see whether the Court of Justice will follow the Advocate General’s Opinion, and how the Bundesgerichtshof will apply the CJEU’s findings in the German legal proceedings.

Advocate General Szpunar’s initiative to request a clarification of the concept of the “communication to the public”, especially in the context of hyperlinks, is very welcome. The distinction proposed by the Advocate General appears to be clear, for web users, website publishers and right holders alike. Furthermore, his interpretation of the public of a website as not including all internet users is more in line with the expectations of all parties concerned.

The expected judgment by the Court of Justice is sure to be an interesting read.