The CJEU today handed down its judgment in the case of Svensson and Others v Retriever Sverige AB (C466/12), holding that a website which redirects internet users through hyperlinks to protected works which are already freely available online does not infringe copyright in those works.

Background

Retriever Sverige is a Swedish company which operates a website through which users receive hyperlinks to articles on other websites. Svensson and the other Claimants are all journalists who wrote articles published in the Göteborgs-Posten newspaper and on the newspaper's website, where they were freely accessible.

Retriever Sverige provided hyperlinks to these articles on the Göteborgs-Posten website without the permission of their respective authors.

The following questions were referred to the CJEU for a preliminary ruling by the Svea Court of Appeal:

1. 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 harmonisation of certain aspects of copyright and related rights in the information society?
   
   
2. Is the assessment under question 1 affected if the work to which the link refers is on a website on the Internet which can be accessed by anyone without restrictions or if access is restricted in some way?
   
   
3. When making the assessment under question 1, should any distinction be drawn between a case where the work, after the user has clicked on the link, is shown on another website and one where the work, after the user has clicked on the link, is shown in such a way as to give the impression that it is appearing on the same website?
   
   
4. Is it possible for a Member State to give wider protection to authors' exclusive right by enabling 'communication to the public' to cover a greater range of acts than provided for in Article 3(1) of Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society?

The answer to the first three questions is essentially determined by considering whether the provision of hyperlinks to protected works freely available on another website constitutes a 'communication to the public' of those works. If so, such a communication may not be made without the authorisation of the copyright holder.

Judgment

A 'communication to the public' requires both an 'act of communication' and a 'public'.

In its judgment, the CJEU held that: (i) the mere provision of hyperlinks to copyright protected works does constitute an act of communication as the links must be considered to be making the works available; and (ii) the (freely available) website was aimed at an indeterminate and large number of people sufficient to constitute a 'public'

However, the Court also referred to case-law and noted at paragraph 24 that "a communication…concerning the same works as those covered by the initial communication and made…by the same technical means, must also be directed at a new public, that is to say, at a public not taken into account by the copyright holders when they authorised the initial communication to the public." (emphasis added)

The Court found that the initial communication targeted all potential Internet users as access to the Göteborgs-Posten website was not subject to any restriction (e.g. paywalls etc.). Accordingly, the links did not make the articles available to a new public and therefore there was no requirement for Retriever Sverige to obtain the journalists' consent.

The Court went on to explain that if the link allowed users to bypass restrictions designed to limit access to a protected work to, for example, a website's subscribers, those users would be a new public which was not taken into account by the copyright holders when they authorised the initial communication.

Finally, the Court held that Member States do not have the right to give wider protection to copyright holders by broadening the concept of 'communication to the public'. To allow this would lead to legislative differences arising between Member States which was precisely what the directive in question sought to avoid.

Commentary

This decision may provide some comfort to websites who share others' content through the provision of hyperlinks, however it by no means gives them carte blanche to link to any online content.

The key element of the decision is that the links were provided to works which were already publicly available to all Internet users. Where the content linked to is not freely available elsewhere, for example it is on a site requiring a subscription, the linking website would likely be found to be communicating the work to a new public and therefore liable for copyright infringement.

Other implications of the work will need to be tested in future cases. For example:

• Where a website is freely accessible but its contractual terms and conditions prohibit use for certain purposes (eg newspaper website's terms and conditions typically prohibit 'commercial use'), would a hyperlink sent to organisations encourage a prohibited use constitute a communication to a 'new public' (because commercial users were not 'taken into account' by the rights holder)?
  
  
• The Court's finding that once a work is made freely available online it is available to all Internet users could have implications for links to infringing content. Where the infringing content (such as an unauthorised reproduction of a work) is also freely accessible online in its original (authorised) form there is an argument following Svensson that providing a link to such content is not a communication to a new public. This situation could then change if the original work is subsequently taken down or made subject to access restrictions such that there is no longer any authorised initial communication to the public.