Intellectual property law for lawyers: when hyperlink sharing is an almighty sin
I want to discuss in this article what it says in the tin, hyperlinks. Let’s start with full and frank disclosure, almost all of us have done this at some point in our life i.e. shared hyperlinks. Whether it’s by sharing a post on social media, either professionally, like LinkedIn, or in a personal capacity, like Facebook, or in a mass email to the entire office (and sometimes, maybe be, even inadvertently copying opposition lawyers) interesting information or perhaps even in a Whatsapp group chat – the point is that at one time or another, intentionally or not, hyperlinks have been shared. Putting our hands to heart, how many of them have we actually researched from the rights holder of this copyrighted information, to confirm if he / she / they are happy with it? I guess, not too many times. Well, if that’s the case, we should really be careful and rightly so, due to the Court of Appeal ruling at the end of March 2021 in TuneIn Inc v Warner Music UK Limited and Sony Music Entertainment UK Limited  EWCA Civ 441. When it comes to sharing hyperlinks, the question really is whether 1) is communication 2) to the public. The answer might surprise you.
TuneIn Inc vs. Warner and Sony
This was a very interesting case and while there are various aspects that stem from this case, I want to focus only on sharing hyperlinks. In summary, TuneIn has allowed its users to gain access to radio stations from various parts of the world and this has been done through hyperlinks. The main points of Warner and Sony were that TuneIn infringed the copyright in these works, absent an appropriate license in substance, under Section 20 of the Copyright Act 1988, the designs and patents due to Infringement by Communication to the Public (CTTP). It is this CTTP, which concerns the sharing aspect of hyperlinks. The Court of Appeal ruled that what TuneIn had not acted like a search engine, for example Google, but basically equipped their customers to infringe copyright and as such infringe the CTTP.
To better understand this Lord Justice Arnold gave an exemplary judgment and this, I can only say, perhaps one of the most thrilling judgments to read. It may be a shame that his exemplarity was not fully appreciated by others, however, LJ Arnold brilliantly lived the adventure of how CTTP would be perceived. For the purposes of this article, I’ll just touch on some of the important CJEU cases that LJ Arnold eminently referred to, for readers to understand the picture.
Case C-466/12 Svensson vs. Retriever Sverige AB [EU:C:2014:76] (“Svenssonâ)
In summary, this was a case involving journalists for the Applicant whose work was already available free on the Web. The defendants provided hyperlinks to their subscribers to access works which included the work of journalists. The applicants’ case was that there was CTTP without their authorization. The CJEU determined that yes, there was CTTP but that did not require the authorization of the applicant. The reason is that when the plaintiffs made their work available on the web without any restrictions, everyone could see it and the public was part of the public that could see the plaintiffs ‘work through the defendants’ hyperlinks. As such, there was no “New audience” [paragraph 97 of TuneIn].
Case C â 160/15 GS Media BV v Sanoma Media Netherlands BV [EU:C:2016:644] (“GS Mediaâ)
In summary, this was a case where a female TV star had taken multiple photo ops for Playboy magazine, by the publisher of the plaintiff. The defendants, on at least 3 times, shared hyperlinks to different websites where anyone could illegally download these images. The CJEU considered the 2-step tests for the CTTP, 1) whether such hyperlink sharing was for “profit” [paragraph 103 of TuneIn] and 2) if the offender did not know or could not reasonably have known that it had been unlawfully shared. If 2) is, yes the perpetrator knew / should have known, then of course it was CTTP, as such an offense. If 1) is, yes, a for-profit hyperlink was shared, then a presumption of CTTP. In that case, the defendants were found liable for offenses under the CTTP as they were operating for profit and could not refute the fact that they did not know they were being shared illegally.
Case C â 527/15 Stichting Brein vs. Wullems [EU:C:2017:300] (“Films peelâ)
In summary, in that case, the defendant sold a media player which included hyperlinks to direct its customers to third party websites which generally disseminated copyrighted works without authorization. The CJEU ruled that it was CTTP again public because without the intervention of the defendant, its clients would have difficulty accessing the “benefit to” [paragraph 108 of TuneIn] illegally to these works.
Case C â 610/15 Stichting Brein v Ziggo BV [EU:C:2017:456] (“Pirate bayâ)
Everyone is probably too familiar with the Pirate Bay website, where users have shared torrent files of bits of copyrighted works illegally on a peer-to-peer basis. The CJEU ruled against Pirate Bay for CTTP, because they operated more than just a search engine, by indexing, categorizing and filtering content. They knew the content was illegal and the communication was intended for New Public, as the appropriate rights holders never consented to such acts for their copyrighted works.
Case C-161/17 Land Nordrhein-Westfalen v Renckhoff [EU:C:2018:634] (“Renckhoffâ)
In summary, in this case, the Claimant’s photographer took a photo that he authorized a travel agent to use on his website. A student for his school project used the photo and it was then uploaded to the school’s website. The plaintiff brought an action against the defendant school. The CJEU ruled CTTP because the plaintiff’s author never authorized the second publication on the school’s website and each time the permission of the rights holder is required. The issue here was not hyperlink but taking the actual work, i.e. the photo and the author would have no control over when to take off when they wanted to. Above all, here the author has never really taken into account the category of the public, who will have access to his work via the school’s site, compared to the moment when he authorized the travel agency’s site.
Case C-263/18 Nederlands Uitgeversverbond v Tom Kabinet Internet BV [EU:C:2019:1111] (“Tom kabinetâ)
This case mainly concerned the use of second-hand e-books and the CJEU ruled that it was the CTTP since the author would have allowed his users to use them and those that the defendant provided on a second-hand basis, unlicensed, were not public as the author explained. As such, they amounted to New Audience.
Case C-392/19 VG Bild-Kunst v Stiftung PreuÃischer Kulturbesitz [EU:C:2021:181] (“VG Bildâ)
The facts of the case are somewhat complex but the relevant aspect, in summary, is whether the defendant could ask the plaintiff to restrict its users, even though the defendant’s work is generally available free on the web. The CJEU recalled that each act of communication must be authorized by the right holder, that is to say that the initial public taken into account is not the same public in subsequent publications, as such. is a New Audience. Otherwise, the author would be in the situation of either accepting the unauthorized use of his work or of abandoning his work by granting a license. I imagine this was said because the alternative and surely the best option would be for the right holder to have the right to decide what to do with their work, rather than being held hostage for ransom regarding their intellectual property. .
Conclusion and My Opinions on Defense Strategies
LJ Arnold concluded that New Audience âdepends on the scope of the authorization by the rights holders of the original communication” [paragraph 138 of TuneIn]. Having said that, I think we should ask ourselves what would we be thinking next time around before we share a hyperlink. Whether it’s sharing a hyperlink on their own website or a customer comes up with such a conundrum, can it be confidently said that there is no violation of the CTTP? Perhaps, a better question, in fact, is there no New Audience involved?
Well, to answer the question, I guess it all depends on how one can discuss the reach of the new audience. I use the word “scope” on purpose, as it might help refer to a purposive interpretation – a fact that patent litigators would be well aware of. Icescape vs. Ice-World  EWCA Civ 2219. In To agree, the court was satisfied to stick to the precedents of the CJEU, in particular for the purposes of legal certainty and I see a lot of wisdom there. However, I think a flexible approach is also needed when pleading on New Public. Unlike Trademark, where investigative evidence is frowned upon to some extent, the CTTP did not yet have the restrictions formally imposed on it. A good litigator could possibly focus on demonstrating that the reach of the new audience would fall within the remit of the initial authorization. This audience overlap in geometric circles can be helpful in the face of such CTTP accusations.
Besides, GS Media Talk about “profitÂ»From the author but Films peel focused on “benefit to ” clients of the abuser. There are clearly subtle but crucial distinctions between the two and, in my opinion, if the focus can be more on the subjective point of view of the accused, then it might be possible to properly defend oneself for the purpose of negation. . It is important to note that if, in fact, the scope and extent of any of these terms is called into question, this in itself may open up other avenues of defense. For example, does it have to be monetary profit or does it just have to be this dopamine rush?
Finally, it goes without saying that a litigant must truly believe in the case he is fighting. To agree had the Brexit triumph card in hand. He had everything to play, to distinguish it from the decisions of the CJEU. However, the master of the rolls considered that the arguments were not convincing, in this regard. I have no doubt that the lawyers who argued for To agree, have done their best, but I have learned over the course of my career that it is better to argue a few good points rather than a range of mixed points. It might sound like litigation 101, but many, including myself from time to time, fail to fully appreciate it, maybe, among others, due to customer expectations or resource pressure. However, it should be remembered that it is the judge who makes the decision and it is best to make his life as easy as possible. The judiciary is already overworked due to the continuous cuts, and naturally the judge has other commitments as well, so it is best to pull short and soft arsenals – of course, maintaining the relevant professional rules at all times. .
I conclude by saying that the hyperlink is an address. Someone’s home address on the World Wide Web. Just like, one would not expect, or appreciate, an unannounced or uninvited guest at their doorstep in the physical world, the hyperlink is to some extent similar to this. So the tricky balancing act, I think, is when to share a hyperlink is to ask, is the step I’m about to take a step too far?