UK: when does hyper-linking amount to copyright infringement?
Arnold J had to decide whether the operators of the Websites had 'communicated the works to the public'. He started by summarising the current state of the law in this area. He stated 18 principles on what constitutes a 'communication to the public' which he thought had been established by European case law and outlined three related references currently pending before the CJEU, concluding that 'these are clearly difficult and controversial issues', which may change following the resolution of the pending CJEU references.
On the question of whether the operators of the Websites infringed, Arnold J found that they did but he also acknowledged that it is arguable:
- 'that the mere provision of a hyperlink is not enough to constitute communication to the public (particularly if the hyperlink is not directly to a source of the copyright work)';
- 'that it makes no difference whether or not the source of the copyright work to which the hyperlink links is licensed by the copyright owner'; and
- 'that it makes no difference whether clicking on the links results in framing (i.e. the work being presented within the frame of the operator's website) or not.'
Ultimately, he followed his own reasoning from FAPL v Sky  EWHC 2058 (Ch), stating that the Websites were similar to the website in question in that case (First Row) in that they 'went beyond the mere provision of hyperlinks linking (directly) to (unlicensed) sources of copyright works (which were framed)… and intervened in a highly material way to make the copyright works available to a new audience. The Websites make it much easier for members of the public to find what they want.'
Having satisfied the necessary tests, Arnold J held that the proposed blocking orders were a proportionate response.
The case is helpful in setting out a list of established principles from the CJEU on what constitutes a 'communication to the public'. It also lends weight to the proposition that the practical effect of indexing and editorial functions on a website - facilitating the easy access of copyrighted material - is important when assessing whether there has been a 'communication to the public' by that website. As Arnold J himself recognises however, the pending CJEU references mean it is not likely to be the last word on the matter.