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A broken link for copyright

New Australian Copyright RulesThe internet and the intricate nature of copyright law (both in Australia and internationally) often leads businesses astray when attempting to identify where their rights exist in relation to online content. This has particularly been the case in relation to hyperlinks to (infringing) material.

In Australia the relevant precedent which has set the new Australian copyright rules is the decision in Cooper v Universal Music Australia Pty Ltd [2006] FCAFC 187. In this case the Federal Court of Australia heard an appeal relating to the authorisation of a communication of infringing material to the public. In essence, the case involved the website ‘’ hosting hyperlinks that linked to material that infringed the copyright of Universal Music (‘the hyperlinks’).

The court found that by allowing the hyperlinks to exist on the website, they were authorising a communication to the public and the infringement of Universal Music’s copyrights. The court noted the comments made by Gibbs J in University of New South Wales v Moorhouse [1975] HCA 26 that:

a person who has under his control the means by which an infringement of copyright may be committed… and who makes it available to other persons, knowing, or having reason to suspect, that it is likely to be used for the purpose of committing an infringement, and omitting to take reasonable steps to limit its use to legitimate purposes, would authorize any infringement that resulted from its use”.

The concept of ‘authorisation’ has become the key test for copyright infringement in Australia.  In the hearing in 2005, Tamberlin J held that:

“this case has been hard fought on the issue of authorisation of copyright infringement, and indeed on all grounds, and the applicants have succeeded on the issue of authorisation. The evidence indicates, and the findings are, that massive scale infringement of copyright has occurred and has been carried out systematically over a substantial period of time by the respondents”.

Cooper v Universal Music Australia Pty Ltd shows how Australian courts are willing to broaden the interpretation of ‘communication to the public’ with the concept of authorisation.

In contrast to the concept of authorisation, the CJEU has recently given its Judgement in Case C-466/12 Svensson. In this case, the Svea Court of Appeal (Svea hovrätt) referred the following questions to the CJEU:

“1) If a person other than the holder of the copyright in a given work provides a clickable link to the work on his website, it is then a matter of communication to the public of the work in such manner as provided for in Article 3.1 of Directive [2001/29]?

2) Does it affect the [Question 1] of the work as the link refers to is from a page on the internet that can be accessed by anyone without restrictions or if access is restricted in some way?

3) Should, for the purpose [of question 1], make a distinction between cases in which the work, when the user clicks on the link, presented on another web page or when the work for the user’s clicking is presented in a way that gives the impression that there is on the same page?

4) Is it possible for a Member State to provide greater protection for the author’s exclusive rights by allowing the transmission to the public include more acts than those required by Article 3.1 of Directive [2001/29]?”

Article 3.1 states that “Member States shall provide authors with the exclusive right to authorise or prohibit any communication to the public of their works, by wire or wireless means, including the making available to the public of their works in such a way that members of the public may access them from a place and at a time individually chosen by them”.

In short, the CJEU answered the first three (3) questions by stating that “Article 3.1 of Directive 2001/29 must be interpreted as meaning that the provision on a site of clickable links to works that are freely available on another website does not constitute communication to the public in such a manner referred to in that provision”

The CJEU answered the forth question by stating that “Article 3.1 of Directive 2001/29 must be interpreted as precluding a Member State providing greater protection for authors by allowing the concept of communication to the public include more acts than those referred to in that provision”.

In answering these questions, the court was satisfied that a hyper link was a communication, however the crux of the decision rested on what was meant by ‘the public’ and whether the links invited a ‘new public’.

The basic distinction was that if the material being linked was openly available to the public elsewhere then it could not constitute infringement. For example, the below hyperlinks are openly available to the public and therefore would not be considered an infringement.  However, if the links below allowed access to material that would otherwise require payment or some form of access, they would be considered to be infringing links.

These cases highlight the different means to which the Australian and EU Courts have reached decision as to what constitutes an infringing hyperlink.

Irish Bentley Lawyers have a significant level of experience in intellectual property law and are very versed on these new Australian copyright rule precedents. We have been successfully involved in a number of copyright disputes, within Australia and internationally. We are able to assist at the onset of a future business endeavour and at all stages of infringement action.

Please note that the above does not constitute legal advice and Irish Bentley Lawyers make no representations or warranties as to the accuracy of any of the information contained herein. If you have a copyright issue, then please do not hesitate to contact the team at Irish Bentley Lawyers – there is no substitute for proper legal advice based on your individual and unique circumstances.

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