Clearing the fog around hyperlinks and copyright

Posted by Blogactiv Team on 21/02/14

Guest post by Jakob Kucharczyk, director of CCIA Europe (Computer & Communications Industry Association).

The February 13 Svensson case ruling by the Court of Justice for the European Union (CJEU) represents a mix of both progress and peril as Europe seeks to clarify how copyright law should apply to the ubiquitous hyperlinks we all use in countless emails, social posts and other digital communications.  The case originated in Sweden and questioned whether links to freely accessible content can be considered a copyright violation. A group of journalists had sued a company using hyperlinks of the journalists’ published work as part of a news digest service for clients.

The CJEU’s ruling upheld the company’s right to use the hyperlinks. But while we are pleased with the particular outcome in this case, we’re worried by the court’s reasoning. That’s because the court still seems to consider hyperlinks to fall under copyright protection, and its ruling in the Svensson case had more to do with whether the particular links in question had already been made publicly available.

The current focus on links makes it now abundantly clear that in today’s digital age, copyright law is everybody’s business.  Consider how Facebook users execute 41,000 posts per second and Twitter supports 58 million tweets daily.  Then think of how many of these and other communications include hyperlinks as the vital connective tissue that keeps online communication flowing.  As Julia Powles in Wired aptly put it, the Svensson case imposes “a rather heavy burden on users. Unless you are certain that you are hyperlinking content that has been authorised, you are potentially liable.”

It’s unsettling that the fate of hyperlinks as a target for copyright enforcement in Europe is still undecided. Our concern is amplified by the fact that the court had plentiful input from renowned legal scholars on this case emphasizing the need to minimize copyright restrictions around hyperlinks. But there are also encouraging signs in the CJEU’s ruling, including a clarification that exclusive rights granted under the InfoSoc Directive are fully harmonized to keep Member States aligned with the EU’s framework for IP protection. This is important in creating consistent and sensible copyright provisions across the EU’s internal market.

Europe desperately needs to lift any remaining fog around the ‘clickable links’ question as we progress into a very busy year on the copyright front. As I mentioned in a 7th Feb Project DisCo blog post about EU Commissioner Michel Barnier’s recent 30-day comment period extension in the heavily debated copyright consultation, the hyperlinks question is one of several nagging issues that need to be clarified as we move forward. In the meantime, we are left with ambiguities and a concern that the scope of copyright protections continues to expand in troubling ways.

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