In a society which is growing accustomed to real time news consumption, it is becoming more locally popular to come across hyperlinks directing you from one news website or blog to another. Maltese journalists are not only relying more on linking their own previous news reports within their own stories but also on providing links to reports published by competitors.
In a real world scenario this might appear slightly stupid but in internet terms, hyperlinks are what make the web turn.
The legality or otherwise of hyperlinking, especially the linking of works published on third party sites through the use or hyperlinks, has been questioned several times in the past years but it appears that the matter has been finally put to rest following a recent pronunciation by the European Court of Justice.
Last February, the Fourth Chamber of the European Court of Justice issued a judgement in the case Svennsson et vs Retriever Sverige AB (C-466/12) following a request for a preliminary ruling made by a Swedish Appeals Court.
It is always interesting to read a decision of the European Court of Justice purely focused on what one can and cannot legitimately do with hyperlinks, a fundamental cornerstone of the internet we know today.
Sir Tim Berners-Lee’s fantastic book Weaving the Web (Orion, 1999) is an essential read for anyone who wants to understand the genesis of the web and the use of hyperlinks. I remember back in 1999 when the book was published, devouring its contents like a spy novel. Back then, literature regarding the internet was sparse and Weaving the Web was truly sensational.
While Sir Berners-Lee is credited as the father of the World Wide Web, he did not invent hyperlinks or hypertext. These had been around for quite some time before the web came into being. But it was Sir Berners-Lee who utilised the principles behind HTTP and first weaved them together in what we now know as the web. Little did he know that the very building blocks of the web would have attracted such legal attention. Needless to say, copyright law had a lot of catching up to do as far as hyperlinks were concerned.
This does not mean, however, that all qualms regarding copyright and the internet have now been settled
In Svennsson et vs Retriever Sverige AB, the European Court of Justice was tasked with assessing whether by providing hyperlinks to third party articles originally made available on the Goteborgs-Posten website, Retriever Sverige AB was infringing the exclusive rights of Goteborgs-Posten and its journalists to make their works available to the public.
In its judgement, the European Court of Justice stated that the provision by one website of clickable links to protected works freely available on another website does not constitute an infringement of European applicable copyright provisions, most notably Directive 2001/29, as it cannot be considered as an “act of communication to the public”. This could not be said however, added the European Court of Justice, to situations where the hyperlink provided allows the reader to circumvent mechanisms related to content available online through a premium model.
Our own Copyright Act, which inter alia transposes the provisions of Directive 2001/29, provides in Article 7 that it is the copyright owner that has the exclusive right to authorise or prohibit the communication to the public of a protected work. The definition of “communication to the public” found under the Copyright Act again transposes what is provided for in Article 3 of Directive 2001/29 by establishing that it includes “the making available to the public of the work in such a way that members of the public may access the work from a place and at a time individually chosen by them”.
Any material freely published online would indeed fall under this definition. For instance, an article freely available on the online portal of Times of Malta is effectively communicated to the public as the public can access that article from anywhere they want and at whatever time they wish to.
The increasing availability of public Wi-Fi networks and surging mobile data connections has truly meant that that readers can really choose from where and at what time to consume information. Having another online news site or blog publishing a link to the article originally made freely available on the website of Times of Malta would not be tantamount to copyright infringement.
The latest decision by the European Court of Justice made it abundantly clear that hyperlinking free web content is legal and does not infringe copyright. This does not mean, however, that all qualms regarding copyright and the internet have now been settled.
The rise of a digital always-on society has raised tremendously the pressures that technology is inflicting on our traditional notions of copyright. Hyperlinks are just one tiny problem.
Most of the press coverage is normally focused on online piracy and activities related to sites such as Pirate Bay, which is now 10 years old. National judgments regarding Pirate Bay remain conflicting. While some countries, such as the UK, have forced ISPs to block access to the site, other jurisdictions, such as the Netherlands, have recently reversed decisions by which ISPs were forced to block access on the basis that such decisions proved “ineffective” at reducing copyright infringement.
Dr Ghio is a partner at Fenech & Fenech Advocates specialising in ICT Law (www.fenechlaw.com). He also lectures ICT Law and Cybercrime at the University of Malta.