Last month, an interesting ruling was made by the European Court of Justice (ECJ), stating that a website cannot be found to have infringed copyright by linking to content hosted elsewhere. To most of us, this probably makes sense. However, when reading article 3 of the Infosoc Directive (2001/29/EC) one can easily see why the Swedish Court of Appeal decided to ask the ECJ for guidance on the matter.
Article 3 of the Infosoc Directive is dealing with to what extent an individual or a business who receives a communication of a copyright work can share that with the public without asking for permission.
This particular case involved Swedish journalists and an aggregation company called Retriever Sverige. Retriever Sverige is a media monitor which aggregates content from the television, newspapers, magazines and websites without asking for permission from the sources. Some journalists therefore decided to take it to court, demanding to be compensated.
The ECJ came to the conclusion that Internet linking to works which are freely accessible on another website shall not constitute communication to the public, meaning that such linking is permitted under the law. The reason for this is because the act does not constitute a “communication to a new public”.
It is important to remember that this would not be the case if the original party had measures in place to restrict access to their own subscribers (e.g. using “paywalls”).