In an opinion[i] which will be welcomed by copyright owners, Advocate General Szpunar (AG) proposes that embedding third party content by automatic linking should require the copyright owner’s consent, even where the content has been made freely available elsewhere on the web.
By contrast (as is currently the case), using a "clickable" link should not normally require consent.
The user is unaware of the source
The question of the legality of unauthorised automatic linking arose in the context of a licensing dispute between SPK, the operator of a digital library for the visual arts, and VG Bild-Kunst, a German copyright collecting society, relating to the use of thumbnails of artworks on SPK’s website. The AG’s opinion was that the use of automatic links, which display automatically when the webpage is opened, amounted to an infringing communication. He pointed out that with automatic linking there is no connection with the original site; everything takes place on the site containing the automated link so that users may not know that the work is sourced from a different site. This differed from embedding works from other websites by "clickable" links, where the user has to click to access the content and so is aware that it comes from a different source.
Why the difference matters
The rationale for the distinction, based on previous Court of Justice (CJEU) case law, was that automatic linking communicated content to a wider public that had not been taken into account by the copyright owner when they authorised the original use. The AG appears to be saying that whereas access via clickable links will have been contemplated by the copyright holder at the time of the initial authorisation it was not reasonable to assume that they intended this to extend to automatic links. If the Court of Justice follows this analysis, this will strengthen the hand of rightsholders in combatting online infringements.
Will this be affected by Brexit?
The CJEU’s decision in this case, is not expected before the end of the Brexit transition period (31 December 2020). This means that the decision will not form part of the body of EU law that will be retained in the UK after Brexit. Whereas the UK Courts may have regard to it in deciding similar cases in the future, they are not obliged to. The copyright implications of hyperlinking have recently been the subject of a large number of EU cases, described by a leading copyright blog[ii] as a “labyrinthine legal exercise”, so this is a subject ripe for further analysis by the UK courts and definitely an area to watch.
[i] Case 392/19 VG Bild-Kunst v Stiftung Preussischer Kulturbesitz
[ii] Kluwer Patent Blog 22.10.20