The CJEU has ruled in Svensson and Others v Retriever Sverige AB (C466/12) (Svensson) that providing a hyperlink to copyrighted works which are already freely available online does not constitute an infringement of copyright.  However, if a link allows users to bypass technical measures restricting access to a site on which a copyrighted work appears, then infringement may occur.

The decision had been awaited with some trepidation due to the essential role linking plays in the day to day operation of the internet. A contrary ruling would have created a serious barrier to the interconnectivity upon which the internet thrives.

Background

The preliminary reference stemmed from a case taken by four journalists in Sweden who claimed that their exclusive right to make their works available to the public had been infringed by a media monitoring service, Retriever Sverige AB (Retriever), which provided its users with links to the claimant’s articles. Importantly, these articles already featured on a free to access website of the newspaper, Göteborgs-Posten. However, under 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 Information Society Directive), each communication of a work to the public must be authorised by the copyright holder.

The Svea Court of Appeal referred a number of questions to the CJEU which essentially asked if the provision of a clickable link to a copyrighted work (by a person other than the author) constituted a communication to the public within the meaning of the Information Society Directive.

Decision

The CJEU held that the concept of communication to the public included two cumulative criteria: there must be an act of communication of a work and that communication must be to a “public”. As a matter of principle, it was held that the act of communication to a public must be interpreted broadly in order to afford a high level of protection to rights holders.

Applying that principle to this case, the CJEU held that the provision of a clickable link constituted “a making available to the public” of a copyrighted work.  As previously held by the court in ITV Broadcasting and Others (C-607/11) it is irrelevant whether users choose to avail themselves of this opportunity. Thus the actual transmission of the work is not necessary in order to trigger an infringement of the making available right.

The Court went on to consider the requirement that the work be communicated to a “public”.  The Court referred to previous case-law which established the principle that, where a work had already been made available to the public by the same technical means (in this case over the internet), a fresh communication only occurred if the work was directed at a new public i.e. “a public that was not taken into account by the copyright holders when they authorised the initial communication”.

In Svensson, according to the CJEU, there was no new public. The works had initially been made available on the Göteborgs-Posten website to which access was not restricted, therefore they had been made available to all internet users, including the users of the Retriever service.

The court distinguished links which allow a linking website’s users to bypass technological protection measures restricting access to a site on which a copyrighted work appears (such as a paywall). Those users will constitute a new public not originally taken into account by the rights holder. The court, however, ruled that “framing” content to make it seem as if it appeared on the linking website was irrelevant to the above analysis as it did not affect the nature of the public accessing the work.

Comment

The CJEU did not explain how providing a hyperlink can be equated with providing access to a copyrighted work. The URL underlying a hyperlink exists, independently of the hyperlink, and an internet user can directly access a webpage once he/she knows the correct URL. It can therefore be argued that providing a hyperlink to a webpage is conceptually equivalent to disclosing a book’s library catalogue number: knowledge of the hyperlink / catalogue number can enable a user to gain access to a copyrighted work, but it is difficult to conceive how the provision of such reference information may be viewed as an independent act of communication.

The decision also does not consider the potential liability of a website which links to content which is hosted on a freely accessible website, but where the original communication is not authorised by the rights holder. In addition, even where content has been authorised, the terms and conditions of a linked website may restrict certain kinds of use (such as commercial use).

From an Irish perspective, the Copyright Review Committee recently recommended in its 2013 report Modernising Copyright that  mere linking should not infringe copyright, except where the provider of the link knew or ought to have been aware that the link connected with an infringing copy. It is unclear, pending further case law, whether this proposal is fully in line with the decision handed down by the CJEU.

The full decision is available here.