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Insights

07 October 2020

Copyright Infringement – Link Available Here

The internet is held together by links and frames. They let users jump from page to page without having to run new searches, and allow images and videos from one website to be viewed via another. While this functionality is valuable for both internet users and website owners, copyright infringement can be just a hyperlink away. If you reproduce someone else’s work in the form of a link, or share restricted or illegally published content, you could fall foul of copyright law. In the UK, these rules are set out primarily by the Copyright, Designs and Patents Act 1988 (as amended by EU Directives).

Linking and Framing

A ‘hyperlink’ or ‘link’ (generally seen as a word or a picture) is a connection that can be selected by a user to view information located elsewhere on the same website or on a different website altogether. The link works due to the html coding that lies behind the internet and allows two websites to be pinned together. There are two main types of link: ‘simple links’ which take the user to a website’s homepage, and ‘deep links’ which take the user to a part of the website located beyond the homepage.

‘Framing’ is a linking technique. Content from the linked site will remain on the original site, but will look as if it is part of the site that links to it. The linking site is essentially a window onto the linked site. For example, online film reviews often allow you to watch a YouTube video of a film’s trailer whilst you read the text of a related article. When you click on the video, you are activating the YouTube website, but it will be ‘framed’ by the text of the film review.

Copyright: Reproduction

A copyright holder has the right to control reproduction of their material. The European Court of Justice (ECJ) has held that this can extend to even just a title, where that title is the author’s own intellectual creation. In the context of a hyperlink, this means that if you use the title of a newspaper article (for example) as the text for your link, you could be infringing the author’s copyright. That said, the exemption that allows a work to be reproduced as a quotation can also extend to hyperlinks.

In contrast, framing does not infringe the reproduction right in this way, as the linking website does not create a copy of the material: it just allows the user to view the original website through the frame of the linking site.

Copyright: Communication to the Public

Copyright owners also have the exclusive right to authorise or prohibit communication of their work to the public. Communication of a work to the public can include electronically transmitting it, either by broadcast or by making it available to the public in a way that allows individuals to access it at a time and place of their own choosing. The extent to which linking and framing amounts to such communication has been contested in the courts.
The general rule (of course with exceptions) for both linking and framing is that providing a link to content will not be a communication to the public where the works on the linked webpage are freely accessible with the right holder’s consent. However, if the link allows a user to access a restricted webpage, such as one behind a paywall, the link will be deemed a communication to the public: it is a deliberate intervention without which the user could not access the work.

In some cases, it can be difficult to determine whether a work was placed on the original website with the rights holder’s consent. Where a link is not provided for financial gain, and the provider did not know or could not reasonably have known that the works on the linked website were published illegally, there will be no copyright infringement. However, where the links were provided ‘in pursuit of financial gain’, there is a rebuttable presumption that the provider knew the works were published illegally. The ECJ has not given much of a steer as to how the provider can prove that they did not know consent was lacking, although it suggests that they ‘carry out the necessary checks’. This could, for example, mean checking the terms and conditions of the webpage or actively seeking the right holder’s consent.
The work transmitted by the link has to be of a form authorised by the copyright holder. In ITV v TVCatchup (2013), the ECJ found that TVCatchup’s re-transmission of recorded TV broadcasts over the internet was a communication to the public in breach of ITV’s copyright, even though the broadcasts were available to anyone with a UK television licence and the audiences were the same. The reasoning was that television broadcasts and internet streaming were different types of transmissions with different technical compositions.

In other cases it is arguable that there is a communication to a new public. Re-posting may amount to a communication to a ‘new public’, as the public of the first website is considered different to that of the second website. The same logic may be applicable in the case of linking and framing and this was the position taken by the Advocate General in the recent decision of VG-Bild.
In September, the Advocate General gave his Opinion on a question as to whether or not the framing of a work available on a freely accessible website with the copyright holder’s consent could be considered communication to the public where it occurs in circumvention of technical protection measures against framing. His Opinion suggests that in future, further distinctions may be made between ‘clickable links’ which use the framing technique (which would not be communications to the public), and ‘automatic links’ which immediately display works when the page is loaded (which would be communications to the public). In the view of the AG, the provision of automatic links is similar to reproducing a work and making it available to a “new public” that had not been envisaged by the rights holder. This is in contrast to the argument that the public consists of all internet users. It remains to be seen whether the ECJ will agree.

Looking Forward

In recent years, there have been further cases on issues such as links installed on multimedia players and links to streamed radio content which was only licenced in certain jurisdictions (on appeal).

Copyright in relation to links and framing is therefore very much a developing area of law, with implications for the operation of the internet as the rights of copyright holders are pitted against the interests those looking to publish information and express ideas online. In the meantime, it is worth giving some thought to the works you link to online, whether they are authorised, and the benefits of including the link.

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