A panel of prominent scholars and academics have added their voices to an important case that was referred to the Court of Justice of the European Union. The paper published by the European Copyright Society aims to answer the question of whether publishing a hyperlink to content amounts to a communication to the public and therefore a breach of the creator's copyright under European law.

One of the roles of the Court of Justice is to interpret EU law to ensure that it’s applied in the same manner across all EU member countries. The Court can also be called upon by national courts to interpret finer points of EU law.

A case referred to the CJEU by Sweden’s Court of Appeal is definitely one to watch, as the outcome has the potential to affect the very structure of the Internet.

The case involves a Swedish journalist called Svensson who wrote an article which was subsequently published by a Swedish newspaper both in print and on the newspaper’s website. Svensson’s dispute is with Retriever Sverige AB, a subscription service that supplies links to articles that can be found online.

Svensson said that by providing links to his article, Retriever was communicating his work or making it available to the public without permission and for this he should be compensated.

Retriever refused to pay Svensson any money. Merely linking to a copyright work and displaying the resulting content within a frame did not constitute infringement, the company argued.

The referral to the CJEU is aimed at clarifying the scope of “communication to the public” as detailed in the InfoSoc Directive. The key question is as follows:

“If anyone other than the holder of copyright in a certain work supplies a clickable link to the work on his website, does that constitute communication to the public within the meaning of Article 3(1) of Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonization of certain aspects of copyright and related rights in the information society?”

According to an opinion from the European Copyright Society, the answer to that question should be ‘No’.

ECS, which was founded in January 2012 with the aim of creating an independent platform for “critical and independent scholarly thinking on European Copyright Law”, says it wants to offer its assessment due to the importance of the case on the future of the Internet.

“As Tim-Berners Lee, who is regularly accredited as being an inventor of the World Wide Web, has explained, a standard hyperlink is nothing more than a reference or footnote, and that the ability to refer to a document is a fundamental right of free speech,” ECS writes.

The opinion of the ECS, which is the work of 17 law professors and intellectual experts, says that hyperlinking should not be regarded as communicating a work to the public as outlined in the Directive.

“Hyperlinks are not communications because establishing a hyperlink does not amount to ‘transmission’ of a work, and such transmission is a pre-requisite for ‘communication’,” they explain.

“Even if transmission is not necessary for there to be a ‘communication’, the rights of the copyright owner apply only to communication to the public ‘of the work’, and whatever a hyperlink provides, it is not ‘of a work’,” they add.

While ECS are clear on their stance they also note that individuals and companies aren’t necessarily free to link to any online content they like with impunity.

In certain situations linking can still lead to other kinds of liability including that connected to the deliberate facilitation of access to copyright infringing material, unfair competition, moral rights and circumvention of technological measures.

Nevertheless, the importance of the case is evident. The web is built on links and the wrong decision in this case has the potential to turn it into a legal minefield for anyone daring enough to reference someone else’s content.

“In this case, the Court needs equally to consider the effect of its ruling. If hyperlinking is regarded as communication to the public, all hyperlinks would need to be expressly licensed. In our view, that proposition is absurd,” ECS concludes.