When can you link to and frame third-party content without permission?
Published on 1st Oct 2021
Recent decisions by the European Court of Justice and the UK Court of Appeal have provided further guidance on evolving law around hyperlinking
The European Court of Justice (CJEU) decision in VG Bild-Kunst v Stiftung Preußischer Kulturbesitzprovides (Case C 392/19) has provided greater clarity on when the use of linking or framing to embed copyright content on a webpage will infringe copyright, with a separate judgment by the UK Court of Appeal in Tunein Inc v Warner Music UK Ltd & Anor [2021] EWCA Civ 441 providing further guidance in this area of linking and targeting communication to the public.
VG Bild-Kunst and framing
The VG Bild-Kunst case involved the use of framing to link to copyright content online. Framing is a linking technique where the content from one web page is displayed on a third-party page within a frame, or split part of the screen determined by the webpage designer – the content is viewed on the third party webpage via a deep link to the webpage where the content is located.
In this decision, the court confirmed that the technique of framing content on a webpage is a "communication to the public" under copyright law. If that content is protected by copyright, only the copyright owner, or someone authorised by the copyright owner, can communicate that content to the public. Communicating copyright content to the public without the copyright owner's permission, including by framing that content on a third party website, can therefore infringe copyright.
Importantly however the copyright owner's permission to frame the content may be inferred when the copyright content is already freely available online with the permission of the copyright owner and framing the online content does not circumvent any technical protections in place around the content.
The decision in VG Bild-Kunst is consistent with the CJEU's decisions in earlier cases (Svensson v Retriever Sverige (Case C-466/12) and GS Media v Sanoma Media Netherlands BV (Case C-160/15)) that established 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. The CJEU has also previously ruled that the same applied to hyperlinks that used the framing technique (BestWater International v Michael Mebes & Stefan Potsch, (C 348/13, not published)).
In VG Bild-Kunst, the court did not distinguish between different types of hyperlinking (for example, hot links or deep links) and framing in its decision despite being invited to do so by the Advocate General (we discuss the Advocate General's opinion on the distinction between types of linking in an earlier Insight). This suggests that the CJEU's ruling in VG Bild-Kunst should apply to all types of linking, including simple clickable links, inline or hot links and framing techniques.
Will this approach be followed in the UK?
While this decision is not binding authority in the UK post Brexit, it has already been considered by the UK Court of Appeal in Tunein, where it was regarded as "highly persuasive". The case concerned TuneIn's provision of links to streams of internet music radio stations. These streams were freely available online and, at least in some cases, were licensed by the record labels who brought the claims (either willingly or through compulsory national licensing schemes).
However, the Court of Appeal found that it could not be inferred that the record labels were granting permission for TuneIn to link to those music radio streams when they were targeted to a particular national market and TuneIn was, in part, targeting their "communication to the public" to the UK.
Osborne Clarke comment
Hyperlinking to online content is a communication to the public of that content. If the content is protected by copyright, the copyright owner's permission to link to the content is required.
The copyright owner's permission may be inferred if that copyright content has already been made freely available online by or with the consent of the copyright owner, but not if the copyright owner has placed any type of technical protection around its content, which seeks to prevent hyperlinking to the content, (for example, a paywall) or hyperlinking in a particular manner (for example, technical protection to prevent framing) – in those circumstances if the technical protection is circumvented then the copyright owner's express authorisation to link to the content will be required; and permission may not be inferred if the original content was targeted to another territory.
Remember that fair dealing exceptions or licences to link to copyright content might apply in some circumstances, meaning that the copyright owner's permission is not required or has already been expressly given.
