According to the Court of Justice of the European Union, the owner of a web site may, without the authorisation of the copyright holders, redirect internet users, via hyperlinks, to protected works available on a freely accessible basis on another site. But that ‘freely accessible’ reservation is important
In its much anticipated judgement in Case C-466/12 Nils Svensson and Others v Retriever Sverige AB, the CJEU has given the green light to the use of hyperlinks, ruling that there is no breach of copyright automatically arising from their use. Just as well as any other ruling may well have signalled the end of civilisation as we know it. Moreover, hyperlinks are OK even if the internet users who click on the link have the impression that the work is appearing on the site that contains the link.
But of course it is not that simple. Where a hyperlink takes you to a site which is not freely available, different considerations apply.
Press articles written by several Swedish journalists were published on a freely accessible basis on the web site of the Göteborgs-Posten. Retriever Sverige, a Swedish company, operates a web site that provides its clients with clickable internet links (hyperlinks) to articles published on other web sites, including the site of the Göteborgs-Posten. Retriever Sverige did not, however, ask the journalists concerned for authorisation to establish hyperlinks to the articles published on the site of the Göteborgs-Posten. The journalists saw this as a breach of their copyright.
The Svea hovrätt (Svea Court of Appeal, Sweden) brought the matter before the CJEU to ascertain whether the provision of such links constitutes an act of communication to the public within the meaning of EU law (ie in terms of the Copyright Directive). If was deemed to be an act of communicatiobn, the establishment of hyperlinks would not be possible without the authorisation of the copyright holders. EU law provides that authors have the exclusive right to authorise or prohibit any communication to the public of their works.
The CJEU holds that the provision of clickable links to protected works constitutes an act of communication. Such an act is defined as the making available of a work to the public in such a way that members of the public may access it (even if they do not make use of that possibility). In addition, the potential users of the site operated by Retriever Sverige can be regarded as a public, since their number is indeterminate and fairly large.
The Court points out, however, that the communication must be directed at a new public, that is to say, at a public that was not taken into account by the copyright holders at the time the initial communication was authorised. According to the Court, there is no such 'new public' in the case of the site operated by Retriever Sverige. As the works offered on the site of the Göteborgs-Posten were freely accessible, the users of Retriever Sverige's site must be deemed to be part of the public already taken into account by the journalists at the time the publication of the articles on the Göteborgs-Posten was authorised. That finding is not called into question by the fact that the internet users who click on the link have the impression that the work is appearing on Retriever Sverige's site, whereas in fact it comes from the Göteborgs-Posten.
The Court concludes from this that the owner of a web site, such as that of Retriever Sverige, may, without the authorisation of the copyright holders, redirect internet users, via hyperlinks, to protected works available on a freely accessible basis on another site.
The position would be different, however, in a situation where the hyperlink permits users of the site on which that link appears to circumvent restrictions put in place by the site on which the protected work appears in order to restrict public access to that work to the latter site's subscribers only, since in that situation, the users would not have been taken into account as potential public by the copyright holders when they authorised the initial communication.
Lastly, the Court states that the Member States do not have the right to give wider protection to copyright holders by broadening the concept of 'communication to the public'. That would have the effect of creating legislative differences and, accordingly, legal uncertainty, when the directive at issue is specifically intended to remedy those problems.
Laurence Eastham writes:
In celebration of the legality of hyperlinks, I am listing every comment I have come across with a link to that comment below. Since Svensson has been to IT lawyers what the Budget is to accountants, there are more comments out there than I will have spotted.
I see that many are as worried as I was about this 'new public' but some have picked out threads and areas of concern that never occurred to me and which may be new to you.
Links to comment
Bird & Bird
Hansel Henson LLP
Hogan Lovells LLP
Lewis Silkin LLP (James Sweeting)
Linda Scales Solicitor
Graham Smith (Bird & Bird and cyberleagle)
The 1709 Blog (Pekka Savola)
And just for fun, because you can guess what these say without reading them: