EU-US Comparison & Guide On Copyright Link Liability – An Update

By Ed Klaris & Alexia Bedat

[Note: in this article, the authors offer an update to and replacement of their popular earlier article published in Intellectual Property Watch, entitled, Copyright And Artificial Intelligence, available here.]

In announcing their new post, Ed Klaris and Alexia Bedat state: “An update to our article reviewing US and European law/recent developments in link liability in both the copyright and defamation contexts and providing a checklist of questions an attorney (or editor) ought to ask before deciding, prepublication, whether a proposed link may lead to liability in the US and/or the EU. Updates include the recent Goldman v. Breitbart decision in which a Federal Judge concluded that embedding a Tweet can be copyright infringement.”

For full new article, please visit: http://klarislaw.com/wp-content/uploads/klarislaw-copyright-liability-for-linking-and-embedding.pdf

The introduction of the new article is reprinted below:

“Linking is a fundamental part of our online language – it organizes and allows us to navigate the endless expanse of information that is the World Wide Web. Whether used by private individuals on social media accounts or journalists in news articles, links are everywhere. For publishers on global platforms, this means exposure to liability is, also, everywhere.

Understanding hyperlinking liability in the European Union, as well as the United States, is thus a prerequisite, both for media companies and the lawyers advising them. Until recently, the act of linking to material that is either copyrighted or defamatory in the United States did not, on its own, carry liability. In February 2018, however, the Southern District of New York handed down an opinion altering the status quo of copyright infringement. At the time of writing, in the Second Circuit, embedding a tweet, without any actual copying, violates the Copyright Act. This development makes the framework of link liability in United States potentially as complicated as the legal framework developed in Europe over the course of the last five years.

Linking to copyrighted material in the EU may trigger liability in one of two situations: (1) linking to copyrighted content in such a way that enables users to circumvent access restrictions to the original content or (2) linking by a commercial website in circumstances where the hyperlinker has knowledge that it is infringing copyright.

As discussed in this article, the European Court of Justice is quick to find the required knowledge for liability. That said, absent these situations, similarly to the U.S., hyperlinking to copyrighted content, without more, does not lead to liability.”

Regarding defamation, no European Union court has pronounced itself yet on the issue of linking to allegedly  defamatory material. An application is currently pending before the European Court of Human Rights (“ECtHR”), and while jurisprudence from around the world and policy both strongly favor protecting hyperlinkers, the ECtHR is not bound by either of these.

This section reviews U.S. and European law on link liability in both the copyright and defamation contexts and sets forth a checklist of questions an attorney (or editor) ought to ask before deciding, prepublication, whether a proposed link may lead to liability.

Image Credits: Ed Klaris