Hyperlinks to other websites are routinely placed on their own sites by both entrepreneurs and non-entrepreneurs. These links have different functions, but are usually only links to other sources of information, business partners, operators of websites containing the link, or other relevant websites that can help visitors of the site containing the hyperlink.

The site to which the hyperlink leads may contain the copyrighted work of third parties. In practice, there may be situations where the author of such work does not agree to the placement of a hyperlink. Unless the author of the site containing the link and the author of the linked pages agree, this can lead to litigation. In such cases, it is critical to assess whether the placement of the hyperlink resulted in an infringement of the third party’s copyright and therefore whether the third party (author) is entitled to the removal of this hyperlink.

Such a case was dealt with by the Court of Justice of the EU (hereinafter “CoJ“) in its judgment in the case of Nils Svensson et al against Retriever Sverige AB, no. C-466/12 (hereinafter “Judgement“), which answered several preliminary questions relating to the placement of hyperlinks to websites containing the copyrighted work of third parties and the protection of the copyright of the authors of such work.

The protection of copyright at EU level is regulated by Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001, on the harmonisation of certain aspects of copyright and related rights in the information society (hereinafter the “Directive“), which is further implemented in the legal systems of individual EU Member States. Article 3.1 of the Directive implies that any communication of the work to the public requires the permission of the copyright holder.

1. Communication to the public

The first question to be resolved was whether the fact a person other than the copyright holder of a work provides a hyperlink to this work on their website, constitutes communication of the work to the public within the meaning of Article 3.1 of the Directive, i.e. whether this could be construed as an unauthorised infringement of copyright.

According to the conclusions of the CoJ, communication to the public pursuant to Art. 3.1 of the Directive includes two elements: 1) the act of communication itself, and 2) communication to the public.

For this to be a case of “communication”, according to the CoJ, it is sufficient that the work is made public in such a way that the people who make up the public could have access to this work, and it is irrelevant whether they take advantage of this option or not. The placement of a hyperlink therefore meets the definition of “communication”.

“The public”, pursuant to Article 3.1 of the Directive, should be understood as an unspecified number of potential recipients, consisting of a large number of people. Communication conducted by the operator of the website via hyperlinks, is directed at all potential users of the site managed by this party, i.e., an undetermined and fairly high number of recipients. The placement of a hyperlink therefore also meets the nature of communication to the public.

The answer to the first question is therefore that the placement of a hyperlink can be considered as communication of the work and therefore infringes the copyright of the author. However, copyright infringement does not occur if the author gave consent for such communication. The need for consent is then dealt with in the second question addressed by the court (see below).

2. New public

The second question examined whether the fact the work to which the link refers is located on a website that is accessible to all without restriction, or the fact that, on the contrary, access to this site is somehow restricted, could affect the assessment of the first question.

The established case law of the CoJ implies that in order for the term “communication to the public” pursuant to Article 3.1 of the Directive to apply to the communication of a work to the public by placing a hyperlink that refers to the same works as primary communication, realised on the internet in the same way as primary communication, i.e., using the same technology, requires this communication to be addressed to a new public, i.e. a public that the copyright holder(s) did not take into account when granting permission for initial communication to the public.

In a situation where the work has already been published on a website to which the hyperlink leads, the CoJ concluded that such access to the works in question by using a hyperlink does not lead to the communication of the works in question to a new public. The reason being that the public for whom initial communication was intended represents all potential visitors to that site, in view of the fact that access to the works on this site was not subject to any restrictive measures, and these works were freely accessible to all internet users. So, if the original site was freely accessible to all internet users, the placement of a hyperlink cannot be considered communication to a new public.

Permission for such communication to the public from copyright holders is not necessary, as there is no new public to which the work would be communicated.

However, if access to the original site on which copyrighted works were published was restricted (e.g. only for registered and paying visitors), and the placement of a hyperlink removed the necessary protection of copyrighted works from publication and the copyrighted works became freely accessible to a wider public, this would be considered as communication to a new public and would therefore require the author’s consent.

3. Display of hyperlinks 

The third question addressed by the CoJ was whether it was necessary to differentiate whether, after a user clicks on the link, the work is displayed on another website or whether it is displayed in a way that gives the impression it is displayed on the same website, when assessing the first question.

The CoJ concluded that the method in which a hyperlink is dispayed has no impact on the assessment of communication to the public. All that matters is whether there is communication to the public or communication to a new public. If there is no communication to a new public via the hyperlink, such a finding cannot be disputed even if internet users click on the link in question, and the work is displayed in a manner that gives the impression it is displayed on the site on which the link is located, but actually comes from another website.

4. Conclusion 

The above conclusions of the CoJ can be summarised as follows; the placement of hyperlinks leading to a website containing copyrighted works is communication to the public and may therefore require the author’s consent.

The author’s consent is required, however, only if the work is communicated to a new public via the hyperlink, i.e., only in situations where the original website is not freely accessible, and access thereto is restricted (e.g. for registered and paying visitors only). If the hyperlink removes the necessary protection and allows access to works by a wider range of visitors than the original website, this is considered communication to a new public, and such communication requires the consent of the author of the work. Placing such a hyperlink without the consent of the author is unauthorised infringement of the author’s copyright to the relevant works.

To assess the lawfulness of the placement of a hyperlink, it is not critical how the link appears, i.e. whether it opens in a new window, or whether it opens on the site containing the hyperlink.

An author whose copyright was infringed is then primarily entitled to the removal of such an infringement (i.e. the removal of the hyperlink), compensation for damages and possibly reasonable satisfaction, especially an apology and possibly financial compensation.

In view of the above, we therefore recommend verifying whether the respective website is freely accessible to the general public when placing hyperlinks. If these pages are publicly accessible, the placement of a hyperlink does not require the consent of the author according to the above Judgement of the CoJ.

For more information, please contact our office’s partner, Mgr. Jiří Kučera, e-mail: jkucera@kuceralegal.cz ; tel.: +420604242241