The Advocate General of the Court of Justice of the European Union (CJEU), Maciej Szpunar, was called to establish if it is lawful to integrate in a webpage, through a link, a copyright protected work that, with the rights’ holder authorization, was already available to the public in another website.
In the conclusions of last 10th September, the Advocate General states that it depends on the ways through which the republication of the protected work occurs.
Thus, the AG states that it is lawful, even without the rights’ holder consent, the insertion of a protected work through simple hyperlinks clickable by the use of framing (“which consists in dividing the screen into several parts, each of which may display the content of another website”). In this hypothesis, the authorizations is thought to be included in the one released by the owner at the moment of the first publication of the work.
On the contrary, in case of embedding of the work through inline automatic links (i.e inline linking or hotlinking) it is necessary a new authorization by the rights’ holder of the work. Moreover, the automatic view on a webpage without “any further action by the user” would integrate – in Szpunar’s opinion – a communication act to the public in accordance with art. 3.1 of the Infosoc Directive (2001/29/EC).
In the premises the Advocate General took the opportunity to highlight the importance of hyperlinking in its primordial function of building the web of Internet (the so-called webbing the Web). The hyperlink, allowing the access to resources form a website to another without a continuity solution, represents, as a matter of fact, essence of the Internet itself.
The online contents are viewed, often, through links that allow the access in a more or less informed way with regard to their origins. Therefore, the internet users do not always have the real perception of the origin of the different elements that constitute the webpages they are browsing.
As a confirmation of this, we can take into consideration the various types of link that inhabit the multiform reality of the internet:
- the simple link leads to the homepage of a website to which it links;
- the deep link, instead, instructs the user to a specific resource inserted in a page of the clicked website, without passing through its homepage.
Nevertheless, in both cases, the integration – in the clickable links – of the website’s url to which it links, suggests that user is aware that the resource which he will view belongs to a third website from that of the original navigation.
However, it is different , from a functional and legal point of a view, the technique of embedding – or, to use the same terms of AG inline linking or hotlinking – through which the external content “enters” the webpage through specific instructions in html code in order to be viewed automatically, at the opening of the consulted page, without a link to click and, therefore, without the knowledge of the user of its actual origin.
The final result for the person who browses is the same that there would be if the resource would already be inserted in the viewed page and not added ab extra in a next moment.
Therefore, in this regard the AG pointed out – as mentioned – that, given that the work addresses a “new” public, different from the one taken into consideration when it was first made available, the embedding of the work represents a communication to the public and, thus, where not explicitly authorized, violates the copyright of the holder of the work.