Intellectual Property: Hyperlink to free web content does not infringe copyright

The European Court of Justice has found that providing clickable links to other freely available internet content from a website is not a communication to the public of copyright works under Article 3(1) of the Copyright Directive.

Communication of copyrighted works is prohibited under the Copyright Directive. The prohibition includes the broadcasting of works or making the works available by via electronic transmission. The prohibition has primarily been used to capture peer-to-peer services and the sharing of pirated video streams and copies of shows and events via the internet.  

The applicants were seeking compensation for harm allegedly caused by external website hyperlinks to press articles in which they held the copyright. The court disagreed that any harm had been caused.

It found that the copyrighted content (the press articles) had not been “communicated” to a new public because the articles were freely available and accessible to anyone with internet access. Therefore, the public targeted by the communication consisted of all potential visitors to the site concerned.

COMMENT - This decision provides long-awaited clarification that everyday hyperlinking to another website’s content does not infringe the author’s copyright. However, it only applies to freely available and accessible content and would not extend to restricted works, for example hyperlinks which circumvented a website paywall.