The hype over hyperlinks

Do you have a website? Have you ever used hyperlinks to link content between your website and a third party's website? Do you know if the content of the hyperlinks used were protected by copyright?

What are hyperlinks? In short, hyperlinks allow internet users to jump from one point to another on a web page by a click of a button. In some cases, hyperlinks are used to link third party websites with associated content.

However, hyperlinking to third party content, without permission, could infringe the intellectual property rights of others.

As the owner of a website, you may be liable for any infringement of those intellectual property rights, in particular copyright rights in certain circumstances. Even Internet Service Providers (ISPs) may be liable for intellectual property infringement.

Why? Website operators control the hyperlinks they include on their sites. They can decide whether or not to use hyperlinks and what content is linked. ISPs provide users with an internet connection and may also host websites providing the facilities to ensure the smooth running of websites.

When used strategically, hyperlinks are a powerful tool for linking between associated third party websites; however, this is often done with the express permission of the third party, or in a sponsorship arrangement.

The recent case of Cooper v Universal Music Australia Pty Ltd [2006] 156 FCR 380 (Cooper) provides a helpful explanation of the liability of hyperlinking.

In Cooper a website owner and operator, his ISP and the director of the ISP company were all responsible for infringing the copyright of sound recordings hyperlinked on the owner's website. The owner's website itself did not directly contain any copyright-protected music files. Importantly, however, it did allow website users to access the copyright-protected music files containing sound recordings via hyperlinks. By doing this the website operator, ISP and ISP director effectively authorised and facilitated copyright infringement by website users.

The Federal Court found in this case that because the website owner, the ISP and ISP Director had 'authorised' the infringement of copyright because each had the power to prevent the copyright infringement from occurring.

The Owner

The website owner created and controlled the website and therefore had power to prevent the copyright infringement.
The design of the website made infringing copyright easy.
He had the power to prevent website users adding infringing hyperlinks and/or to remove hyperlinks that infringed another party's copyright.
He had a commercial relationship with the website users who added hyperlinks to his site and who downloaded the linked files because he benefited financially from the sponsorship and advertisements on his website targeted toward these users.

The ISP and ISP director

The ISP and ISP director also infringed copyright by allowing the acts of copyright infringement that resulted from the use of the website.
Both parties could have but failed to take reasonable steps to prevent the copyright infringement.
They had the power to stop hosting the website or to place pressure on the website operator to remove the infringing hyperlinks.
Instead the ISP used the site to achieve commercial advantage through advertising on the website.

An Employee of the ISP

Interestingly and importantly, an employee of the ISP who merely provided computer-technology assistance to the website operator did not infringe copyright.
As an employee, he did not have the authority to authorise any of the acts of copyright infringement that occurred.

What to take from this case

A person can be liable not only for infringing copyright themselves, but also for 'authorising' others to infringe copyright.
Website operators may be liable for authorising copyright infringement via their websites where they provide an open invitation and provide to the means and technology for authorising infringement.
ISPs may be liable for authorising copyright infringement on websites that they host where they could have but failed to take reasonable steps to prevent infringement. See for example the ongoing iiNet case in relation to liability of the ISP for copyright infringement by its users.
Merely providing a hyperlink will not be sufficient to establish liability for copyright infringement. However, you should take reasonable steps to ensure that hyperlinked material on your website does not infringe another person's copyright

For further information or advice on this topic, please contact Russell Morley, Senior Lawyer, by email at rmorley@talbotolivier.com.au.