In what seems like an absurd court case, the European Union Court of Justice is trying to decide if hyperlinking is copyright infringement. As crazy it may be, the outcome of this case could have wide implications for the Internet.
For those who think there’s no way that the EU court could possibly rule that linking is copyright infringement, I’ll remind you of when the Department of Homeland Security seized several websites in 2011 for merely linking to copyright-infringing websites. The DHS claimed that the sites linking in to pirate websites was also a form of “direct criminal copyright infringement”.
The court case in Europe concerns a Swedish journalist who claims that a subscription news link service owes him money for linking to his article. The subscription company, Retriever Sverige AB, refused to pay and said “Merely linking to a copyright work and displaying the resulting content within a frame did not constitute infringement.”
The exact wording of question posed to the court is, “If anyone other than the holder of copyright in a certain work supplies a clickable link to the work on his website, does that constitute communication to the public within the meaning of Article 3(1) of Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonization of certain aspects of copyright and related rights in the information society?”
In other words, do hyperlinks constitute a “communication to the public” that is protected by copyrights?
In a recently published paper presented to the court, the well-respected European Copyright Society (ECS) argues that it would be absurd to equate links with copyrighted communications,”If hyperlinking is regarded as communication to the public, all hyperlinks would need to be expressly licensed. In our view, that proposition is absurd.”
The ECS points out that hyperlinks are merely footnotes or references to the work of others which has always been permitted by copyright law.
“As Tim-Berners Lee, who is regularly accredited as being an inventor of the World Wide Web, has explained, a standard hyperlink is nothing more than a reference or footnote, and that the ability to refer to a document is a fundamental right of free speech,” ECS emphasized.
The ECS also quoted law professor and author of Revising Copyright Law for the Information Age Jessica Litman who wrote “… the public has always had, and should have, a right to cite. Referring to a copyrighted work without authorization has been and should be legal. Referring to an infringing work is similarly legitimate … Drawing a map showing where an infringing object may be found or dropping a footnote that cites it invades no province the copyright owner is entitled to protect even if the object is blatantly pirated from a copyrighted work. Posting a hypertext link should be no different.”
ECS explained the importance of hyperlinks to the court, “Hyperlinking is intimately bound to the conception of the Internet as a network, and hyperlinks constitute paths leading users from one location to another. As the Supreme Court of Canada has stated ‘[h]yperlinks … are an indispensable part of [the Internet’s] operation.'”
They also issued a stern warning that regulating online linking would essentially destroy not only freedom of speech but also countless business ventures on the internet.
“The legal regulation of hyperlinking thus carries with it enormous capacity to interfere with the operation of the Internet, and therefore with access to information, freedom of expression, freedom to conduct business, as well – of course – with business ventures that depend on these types of linkages,” they warned.
Who could argue with these statements by the ECS? Apparently only a greedy copyright troll can.
Virtually all websites are driven by hyperlinks. If the EU court was to rule that hyperlinks represent copyrighted communications that need to be licensed then Internet giants like Google, Facebook, Reddit and others would be put out of business immediately, and I seriously doubt that would be allowed to occur.
Stay tuned for the judgement in this case as it has huge implications for the Internet.
Note: This is the extent some copyright trolls are going to to challenge independent websites. If you have a blog that posts material from around the web, it’s vital that you adhere to some basic copyright rules for aggregating content to avoid this type of absurd attack. Don’t feed the trolls.
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