In February the European Court of Justice finally issued a ruling in a highly significant copyright case called Svennson.
Since December 2002 European internet copyright law has been harmonised by the 2001 Information Society Directive.
But it is only now that cases are coming to court testing and clarifying various aspects of this law. Typically a national court will initially be asked to decide the question but then decides clarity on the law is required from the ECJ/CJEU by way of a “reference for a preliminary ruling”.
Such references from all over the EU are developing a body of European copyright law – prior to the 2001 Directive copyright was mainly a matter for Member State law. This means intellectual property lawyers have to be increasingly familiar with both UK law and the decisions of the ECJ as well as the provisions of relevant Directives and Regulations emanating from the EU.
In Svensson the issue was whether the placing of internet hyperlinks – ubiquitous on pretty much all websites – required the permission of the owner of the copyright in the material linked to.
This is because the Information Society Directive gives copyright owners the power to control the online communication to the public of their works – the so called “communication to the public right”. It was argued by several Swedish journalists in Svensson that their communication to the public right was infringed by a website that used hyperlinks to link to their content on a newspaper website.
Given hyperlinks are basic to how the internet operates a decision that would have required permission for this would effectively have closed down the internet in the EU or at least mired it in litigation and bureaucracy in clearing rights. It would also have put EU copyright law in conflict with US and other copyright laws.
So to great sighs of relief in the copyright community, the Court sensibly ruled that hyperlinks do not infringe the communication to the public right. But not in all circumstances. 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. Commercially these are important questions.
This case is a good example of how copyright law is developing in the internet age. A close reading of the decision is essential for those advising on online copyright infringement. Prior to the judgement a group of leading IP professors across the EU – the European Copyright Society – issued a 17-page opinion on Svensson – highlighting why hyperlinks did not infringe the communication to the public right.
On the central issue they made three key arguments – the Court only agreed with one. This is not the first time that copyright scholars and the ECJ have differed and it won’t be the last – but at least here the right result was reached by the Court in the end.
Simon Stokes is a copyright lawyer and a partner at Blake Lapthorn