Cap proposed on Irish rights around reproducing linked content

In a report into modernising copyright (180-page / 5.99MB PDF) for the Government in Ireland, the Copyright Review Committee said the act of hyperlinking should in general not be deemed an act of copyright infringement and said that a "very small snippet" of linked-to content should also be allowed to be reproduced on websites without that constituting infringement either.

The Committee was set up by the Department of Jobs, Enterprise and Innovation to examine existing copyright laws in the country and recommend changes where it identified "barriers to innovation".

"Interconnectedness by linking is at the very heart of the internet, so we recommend that linking should not infringe copyright, except where the provider of the link knew or ought to have been aware that it connects with an infringing copy," the Committee said in its report. "We further recommend that it should not be an infringement of copyright to reproduce a very small snippet of the linked work reasonably adjacent to the link, and that a very small snippet should consist of no more than either 160 characters or 2.5% of the work, subject to a cap of 40 words."

The Committee said that publishers should not be held liable if having linked to another webpage elsewhere on the internet that content "is subsequently changed to infringing material". In addition, news websites would be able to rely on a 'public interest exception' to link to infringing content without themselves being liable for copyright infringement, under the proposals.

"The content on a page can (and very often does) change after the provider of the link has provided it; and, since the provider has no control over what happens to a site after he or she has provided the link to it, he or she should not be liable if the content is subsequently changed to infringing material," the Committee said. "Second, if a news site wishes to expose sites that stream pirated films or music, it would be unworkable if it could not say where those sites are, and the “public interest exception” would allow the news site to do so without fear of infringing copyright."

The Court of Justice of the European Union (CJEU) has been asked to provide a ruling on how that EU law applies in the case of hyperlinks. A Swedish court has asked whether the supply of a "clickable link" to an authors' work by non-rights holders should "constitute communication to the public" within the meaning of EU law. The Swedish court has also asked whether the answer to that question changes if access to the content is restricted in some way or by the way the content is displayed after a link is clicked on.

A Dutch court ruled last year that the act of linking to an illegally copied work can itself be considered copyright infringement.