The legal status of hypertext linking (or “hyperlinking”) remains fraught. Since the early 2000’s best practice legal advice has focussed on the safe option, namely, obtain permission unless the link is to a home page and there is no real prospect of any intellectual property rights infringement being raised.
Cases to date from different jurisdictions have been inconsistent partly reflective of differing intellectual property laws and approaches and partly because of the fact specific nature of these cases. This makes advising with any certainty in an international context extremely difficult and explains why the preference of lawyers has been to take a conservative approach in advising their clients.
By way of example, in the United States in Ticketmaster Corp v Tickets.com, Case No. 99-CV-07654 the US District Court for the Central District of California found that in circumstances where a customer visited a ticket information website (Tickets.com) and was redirected to a ticket seller’s website (Ticketmaster) the hyperlinking did not amount to copyright infringement as there was no actual copying involved. By contrast in the Shetland Times Limited v Jonathan Wills  FSR 604 the Scottish Court of Session in considering the question of newspaper headlines containing hypertext links, found at the injunction stage that newspaper headlines constituted a cable broadcast under the relevant section of the Scottish copyright legislation and the hyperlinking therefore constituted infringement. The Shetland case ultimately settled and the court did not make a final decision on the issue.
In the recent case of Public Relations Consultants Association Ltd v The Newspaper Licensing Agency & Ors  UKSC 18 (the “Meltwater” case), the High Court in the UK had held that accessing a newspaper article via hyperlinks was “more likely than not” to infringe copyright. Unfortunately this aspect was not taken further on appeal. However the copyright implications of hyperlinking will soon be considered at European level as there are currently three separate references pending before the CJEU based on differing factual scenarios all concerning whether hyperlinking a copyright protected work constitutes a “communication to the public” under the Information Society Directive. In Svensson Case C-466/12, the key question referred to the CJEU is whether a hyperlink to a copyright-protected journalistic article on a third-party website constitutes a “communication to the public”. In C More Entertainment Case C-279/13 the question is whether a hyperlink on a website which enables users to watch sports matches for free constitutes a “communication to the public” and in BestWater International, Case C-348/13 the CJEU is being asked whether a film about water pollution created and paid for by BestWater but made available by competitors links on YouTube amounts to a “communication to the public”.
Should the CJEU confirm that the communication right is infringed in these situations then there will be a significant impediment to on-line development and a practical problem for Internet content providers, advertisers and users alike, all who rely on being able to hyperlink with impunity. In addition there will be no guarantee that courts outside the EU will take a similar approach which will make things even more interesting…….