IP Update – Copyright

02-04-2014

Author: Gavin Woods, Rob Corbet and Olivia Mullooly



Nils Svensson, Sten Sjögren, Madelaine Sahlman, Pia Gadd v Retriever Sverige AB, CJEU, Case C-466/12, OJ 2012 C379/19 [Svensson]

A recent decision of the Court of Justice of the European Union “(“CJEU”) has brought some clarity in respect of whether providing a ‘clickable link’ falls within the scope of copyright protection and whether providing a hyperlink constitutes an act of communication to the public pursuant to the Information Society Directive that is subject to the authorisation of the copyright holder.

Background and Issues

The applicants in these proceedings were journalists who wrote articles published in the Swedish Göteborgs-Posten newspaper and on its website. They brought unsuccessful action in the Stockholm District Court against Retriever Sverige, a company which operates a website containing hyperlinks to articles published on other websites, including links to articles in which the applicants held copyright. The applicants claimed that Retriever Sverige made use of their articles without their authorisation by making them available by way of the hyperlinks provided on its website, thereby infringing their exclusive right to make the articles available to the public. They also claimed that it was not clear to a potential user of Retriever Sverige’s website that by clicking on one of those links he would be redirected to the different website.

Decision

The decision was appealed to the Svea Court of Appeal which stayed the proceedings and referred a number of questions to the CJEU for a preliminary ruling regarding the interpretation of the Directive. In summary, the CJEU was asked to determine the following:

Does linking constitute communication to the public?

The CJEU indicated that in order for an act to constitute ‘communication to the public’ two elements are required: an ‘act of communication’ and a ‘public’. The CJEU held that the provision on the website of the hyperlinks to the protected works constitutes ‘act of communication’ as the links must be considered to be making works available to the public. It was also held that the website on which the hyperlinks were included was aimed at all potential website’s users being a fairly large and indeterminate number of recipients, sufficient to constitute a ‘public’ within the meaning of the Directive. The CJEU however noted, by reference to the case law, that the copyright holder’s authorisation will be only required when the communication is directed at a ‘new public’ which was not taken into account by the copyright holders when the initial communication was authorised, which was not the case in this instance. In effect, the CJEU ruled that because the content accessible through a link is already available to the public at large through the internet, sharing this same link does not constitute an additional communication to the public that would be in breach of copyright. Therefore the provision of the hyperlink was not infringement of the rights in the absence of any circumvention of restrictions on the category of persons who could access the publication on the original website.

Is it relevant whether or not the website being linked to can be accessed without a restriction?

The CJEU held that the position, as outlined above, would be different if the link would allow a potential user to bypass restrictions included on the website where the protected works are included as those users would be considered a new public not taken into the account by the copyright holders during their initial authorised communication.

Should there be a distinction between whether, on clicking into the link, the work is shown in such a way as to give an impression it is on the same website or a third party website?

The CJEU held that the position as outlined above would be the same in both cases.

Can a Member State expand the meaning of ‘communication to the public’ to cover more acts than those included in the Information Society Directive thereby giving additional protection to authors?

The CJEU held that a Member State is not entitled to give a wider protection to the copyright holders by expanding the meaning of ‘communication to the public’ to include a wider range of activities as this would have the effect of creating legislative differences between Member States which was what the Information Society Directive sought to avoid. This finding is supported by Recital 23 to the Information Society Directive, which states that “this right should be understood in a broad sense covering all communication to the public not present at the place where the communication originates. This right should cover any such transmission or retransmission of a work to the public by wire or wireless means, including broadcasting. This right should not cover any other acts”.

The CJEU decision, that the owner of a website can redirect its users via hyperlinks to protected works freely available on another site without the authorisation of the copyright holder, will have repercussions for digital copyright law. The key element of this decision is that the hyperlink related to works which were already publicly available and the decision would be different if the hyperlink would allow bypassing restrictions to allow access to works not publicly available. The scope of these restrictions is not clear, for instance, whether it would cover contractual as well as technical restrictions. The language of the decision does not clarity what would happen if the link does not appear on a webpage as a link that can be clicked – for instance a link may render on a webpage as an embedded video or a picture. In addition, the CJEU does not appear to have considered the consequences of licensed content, which may available via a link, where the terms of the licence restrict the audience with which the content can be shared. As a result of this decision there may be an increase in the amount of content providers who restrict access to either paying or registered users.

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