This article was published prior to the publication of the post-Brexit agreement between the UK and EU which covers the relationship between the UK and EU following the end of the implementation period (commonly referred to as the “transition period”) created by the European Union (Withdrawal Agreement) Act 2020, and should be read in that context.
Content on the internet can be shared and linked to in a variety of ways. Many of which are, according to the law as it stands, perfectly legitimate and which do not require the consent of copyright owners. Where copyright works are communicated to a public that had already been taken into account by the copyright holder when they initially published the works, no infringement occurs.
However, the Court of Justice of the European Union (“CJEU”) is now considering how this rule should apply to all the various and evolving forms of linking now available to content sharers in the case of VG Bild-Kunst v Stiftung Preußischer Kulturbesitz (C-392/19). Advocate General (“AG”) Szpunar has just handed down his advisory opinion in the case. It isn’t binding on the Court, but it may give an indication of what is to come.
The AG considered a variety of categories of hyperlink:
Some of these linking techniques operate via visitors’ interactions (a click or a tap to take them to the linked content), some require no interaction at all, they are automatic.
The AG’s opinion is that clickable/interactive links used to direct users to copyright content should continue to not need the copyright owner’s authorisation. They are a communication to a public that the copyright holder had anticipated. However, where any of the categories above are automatic, his view is that the copyright owner’s consent should be sought. They are communications to a new public that the copyright holder had not considered. The absence of consent would potentially mean copyright infringement, although the usual defences to copyright claims would still apply (such as fair dealing for criticism or review).
Further, he considered that acts taken by copyright holders to prevent the copying of their works via automatic linking may well be eligible for legal protection themselves as valid technological protection measures under the Information Society Directive 2001/29.
If the court follows the AG’s opinion, doors will open across the EU for claims against content platforms that routinely use automatic linking. It will also add another, potentially costly, layer to content licensing negotiations. Whilst copyright defences are still available, most businesses will not want to risk relying on them if they can avoid it.
No matter how convenient automatic linking may be for viewers, it is likely that the increased expense of licensing and/or the increased risk of infringement suits will result in a reduction of content being displayed in this way in the EU.
It is worth repeating once again that the CJEU is not bound by the AG’s opinion. It may yet disagree. For UK readers, the eventual judgment may only act as a persuasive (rather than a binding) authority if it is handed down after the transition period for Brexit ends on 1 January 2020.
