Law on hyperlinking clarified by High Court

Iain Connor of Pinsent Masons, the law firm behind Out-Law, was commenting after the High Court issued a judgment in what it described as "a test case about infringement of copyright in sound recordings" under section 20 of the UK's Copyright, Designs and Patents Act (CDPA).

The provisions outlined in section 20 of the CDPA implement EU copyright laws that provide content creators with, among other things, the exclusive right to control the "communication to the public of their works". It is generally an infringement of those rights if others communicate the content without permission from rights holders to do so, although some limitations and defences do apply.

In the case before it, the High Court had to determine whether the activities of US technology company TuneIn amounted to an act of communication to the public and, if so, whether the company was liable for copyright infringement.

According to the ruling, TuneIn operates an online platform, providing a service which enables users to access radio stations around the world. The TuneIn radio service "provides users with a user-friendly, browseable and searchable platform of radio stations and other audio content, which enables users to easily select and listen to music radio stations", and the links it provides allow UK users to access the audio content of around tens of thousands of radio stations globally. 

TuneIn’s service also actively helps registered users find radio content appealing to their tastes; for example, by allowing them to search for stations currently playing tracks from their favourite artists, or by recommending stations to users based on their play history. The TuneIn app also allowed users to record music being streamed from the radio stations onto their mobile device and replay on demand. 

Warner Music and Sony Music Entertainment, as owner of the copyright in a vast collection of sound recordings played on the various radio stations, led a legal challenge against TuneIn for copyright infringement. 

In assessing the music labels' case, Mr Justice Birss considered substantial EU case law that has developed in recent years on the topic of whether hyperlinking to internet content could be copyright infringement. He found that some of the links provided by TuneIn would infringe copyright because they communicated the sound recordings to a 'new public' not previously contemplated by the rights holders. Other links were unlawful because of TuneIn's intention to profit financially from the links by way of advertising revenue from its online platform and app. 

The judge also held that TuneIn had authorised the infringement of copyright by its users where it helped them listen to music played by internet radio stations that did not have a UK copyright licence, even if those stations had a copyright licence in other jurisdictions. Those internet radio stations themselves are liable for copyright infringement if their music is accessed by UK users through the TuneIn service, he said.

Mr Justice Birss rejected TuneIn's claims that its activities fell within the 'safe harbours' provided for under the EU's E-Commerce Directive. The three safe harbours protect online service providers from liability for copyright infringement in certain circumstances where their activities extend only to acting as a mere conduit for the activities of others, as an unaware host of the unauthorised content, or in simply 'caching' the content before its subsequent onward transmission.

Iain Connor of Pinsent Masons said: "The infringement of copyright by the act of communicating a work to a new public has resulted in more references to the CJEU than the EU legislators could have imagined; in part because it was drafted in the very early days of the internet. As technology-enabled solutions have given users access to limitless content for free, so the rights holders have been trying to close the barn door long after the horse has bolted. However, in having the exclusive right to communicate works to the public, the rights holders have found a useful tool on which to rely, as this case demonstrates."