This recent CJEU decision raises a number of considerations for content rights holders and for those seeking to link to content online, across both the EU and the UK

By Deborah Kirk, Luke Vaz, and Amy Smyth

Under UK and European laws, the rights of copyright holders include the right to restrict or prohibit reproduction or communication of their original work. Broadly, this means that any such reproduction or communication of the content requires consent from the copyright holder.

In the digital age, it has become increasingly difficult to regulate for this right in practice, with internet users able to replicate and communicate works using a plethora of channels (for instance, re-posting social media content, framing and inline linking of visual and media content). The Court of Justice of the European Union (CJEU) and UK and EU member state national courts have grappled for a number of years with the particular question of whether hyperlinking constitutes communication of the underlying content that it links to (principally in the CJEU cases of Svensson (2014), GS Media (2016), and Filmspeler (2017), and the English courts TuneIn (2021) case) and whether therefore it could constitute an act of copyright infringement if the hyperlinking does not have the consent of the copyright owner.

In VG Bild-Kunst, the latest CJEU case on this topic, the court held that hyperlinking may constitute communication of the underlying content if the rights holder has implemented technical measures to restrict such linking and the linking circumvents those restrictions. The court also held that, for the purposes of restricting linking, a rights holder may impose contractual obligations on a licensee to implement technical measures to prevent such linking. The CJEU’s emphasis in this decision was on the need for effective technical measures to be implemented (or contractually required) to restrict linking, as evidence of the rights holder’s intention to limit its consent to the communication of its content.

The court applied the same analysis to all types of hyperlinks, i.e. clickable hyperlinks, framing, inline linking etc., regardless of functionality. This approach avoids the potentially complex practical issue of distinguishing between different linking mechanisms and their active or passive nature.

Brexit implications

Following the end of the Brexit transition period on 31 December 2020, CJEU decisions delivered after that date (including VG Bild-Kunst) are no longer binding on UK courts. However, it is open to the UK courts to have regard to such decisions. The Court of Appeal has very recently considered VG Bild-Kunst, in its judgement in TuneIn (delivered on 26 March 2021). On the facts of TuneIn, the court was not required to explicitly endorse or reject the CJEU’s decision in VG Bild-Kunst. In this context, the Court of Appeal stated that it considered VG Bild-Kunst to be highly persuasive, on the basis that it is part of a body of CJEU case law on related aspects of copyright laws (the majority of which is binding on UK courts as retained EU law, delivered prior to 31 December 2020), and that it is directly relevant to the particular facts of TuneIn.

However, while the court did give considerable weight to the CJEU’s reasoning, it also deemed key aspects of the VG Bild-Kunst decision – such as technical measures being the only means by which rights holders can limit their consent to communication of their works – to be limited to their specific context (i.e. a dispute concerning the entitlement of right holders to insist upon technical measures to restrict access to content when granting licences). The court also stated that issues of the communication of content via links requires a case-by-case assessment, involving consideration of not only the existence of technical anti-linking measures, but also factors such as the knowledge and intention of the user carrying out the linking; the existence and nature of any relevant licences; the technical nature of the ‘communication’; the relevant ‘public’ being communicated to; and whether or not the communication is made for profit/ commercial gain.

As the Court of Appeal acknowledged in TuneIn, it is not yet entirely clear how UK courts will exercise their ability to have regard to post-31 December 2020 CJEU decisions, particularly in cases in which (unlike TuneIn), the CJEU case law does explicitly and directly address the relevant questions at issue.

Practical considerations

• Rights holders seeking to prevent or restrict linking or framing to their content online should consider implementing, or contractually requiring, practical and effective technical measures to prevent such linking, if feasible in the commercial context of their content publishing and licensing frameworks. Such measures could include access controls and copy control/ digital rights management software. Rights holders who have already implemented measures against linking may wish to review the effectiveness, and ongoing maintenance, of those measures in relation to all of their relevant content.
• For website and online platform providers seeking to link to or frame copyright protected content as part of their sites and services, the CJEU’s decision brings a degree of clarity to assessments of copyright infringement risk when linking to content that is not protected by technical measures. Equally, this case clarifies that linking and framing content in a way which circumvents any technical measures applied to protect the content from those activities, may potentially expose website or platform providers to the risk of copyright infringement claims. Such copyright infringement risks should therefore be considered by website and platform providers, together with other intellectual property and relevant contractual and licensing implications, when assessing their wider content strategies.