Whether hyperlinking amounts to breach of copyright?

Last week, the Court of Justice of the European Union (EJC) ruled on whether hyperlinks could breach copyright laws.

We must be clear, that the court ruled on the circumstances laid out in the case before the court; however, there were certain points that can be taken from the judgment:

• Hyperlinks may infringe the copyright holder’s exclusive right to communicate his or her work to the public but only if linking to protected works could be considered to be ‘making available’ the works and, could be considered an ‘act of communication’ to the public.
• Strict criteria must be met if the hyperlink is to be considered a breach of copyright, most importantly, it must have been directed to a new audience that the copyright holder would not have considered when they agreed to the initial communication to their audience.
• Providing clickable links to a website, which was freely accessible to the public, would not be a breach of copyright.
• Some instances which may amount to breach of copyright include: using a hyperlink to circumvent a barrier put in place to restrict access to the original work such as a pay wall or registration page and linking to content which was made available without the consent of the copyright holder.

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