A recent ruling by the European Court of Justice has decreed that it is not an infringement of copyright to link to an article that is freely available online, even in cases where users believe that the linked article is appearing on a secondary website rather than that of the original publisher.
In its judgment on a dispute between a Swedish newspaper and another company, the ECJ said that a website can link to protected works that are available on another site without the authorisation of the copyright holders.
Journalists working for the Swedish newspaper Goteborgs-Posten had articles published on the paper’s website that were accessible through links on the website run by a company called Retriever Sverige.
They argued in the original case that users of Retriever Sverige’s website would not know that they had been sent to another website by clicking on the links and therefore had made their articles available without authorisation, so believed they were due compensation.
The case was unsuccessful in the Swedish courts but went to appeal and the appeal court asked the ECJ to consider whether copyright law had been broken. The judges maintained that it had not, because the articles in question were on Goteborgs-Posten’s website and therefore already “freely available.”
According to the Court, an article is regarded as public by virtue of being freely available in the first place and a separate site linking to this piece does not make it available to a “new public”, so no copyright infringement can take place.
The court noted, however, that the position would be different if the link allowed users to circumvent restrictions put in place to restrict the article’s public availability, such as a paywall.