By now you will have heard about yesterday’s terrible decision by the Court of Justice of the EU on hyperlinking. In its decision the court conceded that under certain circumstances the mere act of hyperlinking to a work that has been published elsewhere – without the consent of the rightsholder – constitutes a copyright infringement. Even without a detailed analysis of the ruling (which others have done here and here) it is clear that this is a very dangerous ruling as it steps away from previous situation that made a clear distinction between the acts of publishing protected works without consent of the rightsholder (copyright infringement) and the act of linking to such works (not copyright infringement). Yesterday’s CEJU introduces a lot of legal uncertainty for anyone who uses links online, and goes directly against a common sense understanding of how the internet works.
This will be welcome news to rightsholders who have been aggressively pushing for such a limitation to the freedom to link in the past as evidenced by amendments to the Reda report. While the EU parliament ultimately rejected these attempts the Court of Justice has partially granted them through the back door via yesterday’s decision.
As Felix Reda has already pointed out the decision is especially worrying in the context that publishers have also aggressively lobbying for the introduction of additional rights. We have repeatedly pointed out that this must be seen as another effort to gain more control over what users can or cannot do online by attacking the freedom to link.
It shows a remarkable amount of hypocrisy that the European Publisher Council refuses allegations that a new publishers right would affect linking…
“Nothing we are asking for would affect the way that our readers access publishers’ content, or share links on social media or via apps and email to friends and family”
…while one of their members has just gotten the highest court of the EU to declare that linking can in fact be illegal. Two weeks before the Commission is expected to propose an ancillary copyright for publishers, yesterday’s CJEU ruling provides us with another piece of evidence that such a right will be used by publishers as another piece in their strategy to limit who information can be accessed and shared online.