Website owners should use hyperlinks carefully, such as by checking they are not linking to subscription-only content and that the terms of the site linked to permit such an action.
Law firm Blake Lapthorn has issued this guidance following what it called a ‘sensible’ ruling by the European Court of Justice last month, in the significant copyright case of Svensson.
The issue at stake was whether hyperlinks require the permission of the owner of copyright in the material linked to, in order to comply with the Information Society Directive.
Under the directive, right holders have the power to control the online communication to the public of their works – the so called "communication to the public right".
As hyperlinks are fundamental to how the internet operates, a decision that would have required permission “would effectively have closed the internet in the EU,” the law firm said.
But fortunately, and “to great sighs of relief in the copyright community,” the court ruled that hyperlinks do not infringe the communication to the public right.
“But not in all circumstances,” added Simon Stokes, partner at Blake Lapthorn.
“The door was left open to find the right infringed where for example the hyperlinks point to material only available via a subscription.
“The court also did not address the question of what if the website linked to expressly prohibited links or required prior permission in its website terms and conditions or what if these terms prohibited commercial re-use.”
He advised that the moral of the case is to “hyperlink with care,” such as checking subscription-only content is not on the end of the links, and ensuring that the terms and conditions of the site linked to are not being infringed.