Advocate General casts doubt over hyperlink techniques

A recent opinion of the Advocate General in VG Bild-Kunst v Stiftung Preußischer Kulturbesitz proposes that the Court of Justice of the European Union (CJEU) case law on copyright and hyperlinking should be 'clarified' in a manner that the Advocate General accepts may appear not to be fully consistent with previous case law.

The CJEU had previously ruled, in Svensson, that posting a hyperlink to a work protected by copyright, which is already freely accessible on the internet with the authorisation of the copyright owner, will not infringe copyright. Shortly thereafter, in BestWater, it confirmed that the same applied to hyperlinks that used a 'framing' technique – where the content from one web page was displayed when viewing a third party page.

If the CJEU follows the AG's opinion in this case, it would represent a shift of approach from BestWater, with significant ramifications.

Different types of hyperlinking

This case concerns a copyright owner's exclusive right to communicate their work to the public . A German collecting rights society, VG Bild-Kunst argued that hyperlinking to copyright protected works could in some circumstances violate copyright owners' exclusive right of communication to the public even when that hyperlink was to a copy of the work which was posted with the authorisation of the copyright owner.

The Advocate General proposes that a distinction be drawn between different uses of hyperlinking. He breaks these down as follows – whilst recognising that "Internet terminology has not been established with 'Cartesian clarity'":

• A 'simple link' contains the URL address of the site to which it links and takes the user to the home page of the target website. That home page is opened either in place of the webpage containing the link or in a new tab or window. The user will be aware that they are on a different website from the page that contained the link.
• A 'deep link' leads to a page within a target site or to a resource on that target page (such as a graphics or text file), rather than to the home page of the target site. A deep link 'disregards the intended order of navigation on the target website, by circumventing its home page', but the user is still aware of which site they are viewing, as the name of the site is usually contained in the URL.
• 'Inline linking' and 'hot-linking' is where a webpage contains graphics or audio-visual elements, which are files stored on another website rather than on the same server as the webpage. These files are embedded in the webpage by linking to the file. The link automatically displays the file from its original location (the target website), without the user having to click on the link and without reproducing the element on the server of the website on which it appears. To the user, the effect is the same as when a file is contained in and appears on a single webpage.
• 'Framing', now largely obsolete, allows the screen to be split into several parts so that each part can independently display a different webpage or internet resource. For example, one webpage may be viewed on one part of the screen, while another webpage or element from another webpage is viewed on another part. The second webpage or element is not reproduced on the server of the framing site; rather, it is viewed directly via a deep link. As the URL address of the target page is often not visible, the user may think they are viewing a single webpage.
• 'Inline framing' allows another website, page, or element of a second webpage to appear in a frame defined by the first webpage's author. Inline framing is a means of embedding external elements in a webpage so that the elements function like an integral part of the webpage, rather than functioning as a screen-splitting technique like framing. Additionally, as the Advocate General explains, "an inline frame may be defined as the location where a hyperlink opens. In that way, after the link has been activated (by a click), the target resource opens in a frame (whose edges may or may not be visible on the screen), at the location defined by the author of the page containing the link".

The conclusion reached by the Advocate General is that a key distinction should be made between:

1. those techniques, including 'framing' and 'inline framing', which use clickable links to communicate copyright works. In his view, these should not fall within the scope of the copyright owner's exclusive communication right; and
2. embedding a link on a webpage through an 'inline link' or 'hotlink' which results in the copyright work displaying automatically, with no action by the internet user – which in his view should fall within the scope of the communication right.

Automatic links

The Advocate General's reasoning for this distinction is that by actively clicking on a link, the internet user is taken to the copyright work in its original location and the relevant 'public' for the copyright material therefore remains the same. This is the case even though the user has reached that location by clicking a link on a third party website instead of searching for the webpage on which the work is posted, they are still the 'public' originally intended by the right-holder's original communication.

In contrast, where there is no action by the internet user but the work displays automatically, the user does not view the copyright material at the location at which it was originally posted. Instead, the user remains on the third party webpage when they see the linked copyright content and the user is therefore a 'new public' not intended by the right-holder when they originally posted the copyright material online.

Implications

Hyperlinks are central to the way that the Internet (or more accurately, the World Wide Web) operates. Inline linking and inline framing are common techniques, so if a distinction is drawn between these techniques in respect of liability for copyright infringement, it will be an important distinction to be aware of for those who link through to third party content.

The CJEU may not adopt the approach proposed by the Advocate General. It could potentially take a more copyright-owner-friendly approach and decide that techniques such as inline framing can also fall within the 'communication to the public' right, at least in some circumstances.

Alternatively, the court could reaffirm its decision in BestWater, which would seem to imply that none of these techniques would infringe copyright when the content linked to has been posted with the authorisation of the copyright owner. For now, the Advocate General's opinion highlights that the legal issues surrounding hyperlinks and copyright have not yet been fully decided.

Effect on UK copyright law

The CJEU will hand down its decision in the case in the coming months, but this may not be before the Brexit transition period ends on 31 December 2020. If the decision is handed down after 1 January 2021, it will not be binding on UK courts but would likely still have a powerful persuasive effect.

Osborne Clarke comment

Platforms and other websites that link to third party content using inline linking and inline framing techniques should be aware that their practices may need to change depending on the decision of the CJEU. If the CJEU rules that such techniques can infringe the communication to the public right it would not necessarily mean that using such techniques to link to copyright protected works will infringe. It may be that the use of such links could fall within fair use exemptions, such as those covering criticism, review and reporting of current events. There may also be licenses in place, including in situations where the content has been uploaded onto a platform which encourages inline linking and framing and its terms and conditions require its users to licence the use of their content in this manner. However, it is likely that hyperlinking practices will need to be reviewed when the CJEU does deliver its judgment.