Hyperlinking to Unrestricted, Copyrighted Material Online Is Not Infringement, According to European Court of Justice

A company that provided hyperlinks to copyrighted materials that were otherwise available on the internet did not engage in copyright infringement, according to the European Court of Justice. Case C-466/12, Svensson, et al v. Retriever Sverige AB (ECJ, Feb. 13, 2014). The court’s ruling was based largely on the question of whether the links constituted a “communication to the public,” as defined by European Union (EU) law. U.S. courts have reached somewhat similar conclusions over the copyright implications of hyperlinking, particularly whether the fair use doctrine allows a search engine to provide search results in the form of links or thumbnail images.

The plaintiffs, known as “applicants” in EU parlance, are journalists who write for the Swedish newspaper Göteborgs-Posten. Their articles are published in the newspaper’s print edition and on its website. Retriever Sverige is a Swedish company that provides clients with customized lists of links to articles available on the internet. All parties to the lawsuit agreed that the applicants’ articles are freely available on Göteborgs-Posten‘s website. They disagreed on whether a client of Retriever Sverige, upon clicking on a link to the applicants’ content, could tell that they had been directed away from Retriever Sverige’s website. Regardless, the newspaper’s website is the only place hosting the articles.

EU law gives a copyright owner the exclusive right to communicate their work to the public, or to authorize or prohibit others from doing so. Council Directive 2001/29/EC on the harmonisation of certain aspects of copyright and related rights in the information society, art. 3(1) [2001] OJ L167/10. The court held that an “act of communication” may involve any act that makes a copyrighted work available to the public, whether or not the public ever accesses it. Providing a clickable link to a copyrighted work fits this definition, but if the work is already available online, it does not communicate the work to a “new public.” Without a new public, the copyright holder’s authorization is not necessary, meaning that no copyright infringement occurs.

A few cases in the U.S. have addressed similar questions. Two cases involved claims that a search engine’s use of thumbnail images to link to copyrighted images infringed on the copyright owner’s rights. In both cases, the court found that the fair use doctrine applied, and that no infringement occurred, because the search engines’ use of the images was “transformative.” This means that the use of the copyrighted work “adds something new” rather than “supersede[s] the objects of the original creation.” Kelly v. Arriba Soft Corp., 336 F.3d 811, 818 (9th Cir. 2003); and Perfect 10 v. Amazon, 508 F.3d 1146, 1164 (9th Cir. 2007); both quoting Campbell v. Acuff-Rose Music, 510 U.S. 569, 579 (1994).

In both cases, the search engines were not using the copyrighted images to promote their own services, nor were they trying to profit directly off of them. The thumbnail images were much smaller than the originals and served little to no purpose other than to direct users to licensed, full-sized copies—which is generally the whole point of a search engine.

If you are facing a copyright or other intellectual property dispute in New York, New Jersey, or Connecticut, the business and commercial attorneys at Korngut Paleudis LLC can help you understand your rights and prepare your case. To speak with a knowledgeable advocate regarding your intellectual property or other business law claim, please contact us today through our website or at (212) 949-0138 in New York City, (914) 220-8270 in White Plains, or (203) 355-3635 in Stamford, Connecticut.

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Photo credit: marcschneider [Public domain: CC0 1.0], via Pixabay.