Copyright: hyperlinking and the right of communication to the public

By Paul Herbert

Linking is the practice of posting clickable links on the internet that lead to content posted elsewhere.

Under section 20 of the Copyright, Designs and Patents Act 1988 (CDPA), it is prohibited to communicate to the public by electronic transmission the whole or a substantial part of a work that is protected by copyright. This prohibition was introduced by article 3 of the EU’s Copyright Directive, implemented in the UK by the Copyright and Related Rights Regulations 2003.

Whether or not posting a link to somebody else’s work constitutes a communication of the work to the public so as to infringe section 20 of the CDPA was previously unclear. The point was dealt with in Svensson and others v Retriever Sverige AB by the Court of Justice of the European Union (CJEU) on 13 February 2014. The CJEU’s decision is binding on other EU national courts and tribunals…

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