Communicating copyright works – when you can and can’t link to websites

In Svensson v Retriever Sverige AB, the Court of Justice of the European Union has made an important copyright ruling on hyperlinks.¹ The judgment provides a greater degree of clarity over the use of links in both commercial and non-commercial environments. While the CJEU took the view that the provision of a hyperlink is an act of “communication” for the purposes of Article 3(1) of the Copyright Directive (2001/29/EC), it confirmed that a link to a copyright work only requires the consent of the copyright owner if it facilitates access by a “new public”, i.e. a larger group than that to which the original publisher made the work available.

Background

The original proceedings were brought by four Swedish journalists (including Nils Svensson), who between them had written a number of articles that were published in the Göteborgs-Posten newspaper and were also freely available on the Göteborgs-Posten website.

Retriever Sverige is, according to its website, “the Nordic Region’s leading supplier of media monitoring and tools for news research, media analysis and corporate information”.² Among other things, the Retriever site provides a media monitoring service that aggregates news articles and blogs and makes them available through the Retriever platform. According to its website, more than 23,000 news articles and 25,000 blog entries pour onto the Retriever platform every day.³

A selection of articles written by Svensson and his colleagues were made available on the Retriever platform via hyperlinks that redirected to the Göteborgs-Posten website. The Swedish journalists argued that it was not apparent to a user of the Retriever platform that, by clicking on the links, they were redirected to another site to access the material. Retriever, on the other hand, argued that it was clear to users that the links directed them to a third-party site.

First instance and appeal

Svensson and his colleagues brought an action against Retriever Sverige in Stockholms tingsrätt (the Stockholm District Court). They sought compensation on the grounds that Retriever had, without their authorisation, made use of the articles on the Göteborgs-Posten site, by making the articles available to its users via the Retriever platform.

In a judgment of 11 June 2010, the Stockholm District Court rejected the claim and Svensson and his co-claimants subsequently appealed to the Svea hovrärtt (the Svea Court of Appeal). Before this court, Svensson and his co-claimants argued that, among other things, Retriever Sverige had infringed their exclusive right to make their respective works available to the public by providing their users with access to the articles via links displayed on the Retriever platform.

In its defence, Retriever argued that the provision of links to works communicated to the public on other sites does not constitute an act liable to affect the copyright in those works. Retriever also contended that it did not carry out any transmission of copyright works, as the links merely indicated to its users the sites on which the works could be found.

Referral to CJEU

The Svea Court of Appeal decided to stay the proceedings and to make a reference to the CJEU on certain points of law. The questions referred were as follows:

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?
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?

Under Article 3(1): “Member States shall provide authors with the exclusive right to authorise or prohibit any communication to the public of their works, by wire or wireless means, including the making available to the public of their works in such a way that members of the public may access them from a place and at a time individually chosen by them.”

CJEU decision

Of greatest interest were the first three questions, which the CJEU decided to examine together.

The CJEU broke down the concept of “communication to the public” under Article 3(1) into two distinct criteria that both need to be fulfilled – i.e. that (a) there is an “act of communication” which (b) is made to the “public”.⁴

In analysing an “act of communication”, the CJEU found that this must be construed broadly to ensure, in accordance with (among other things) Recitals 4 and 9 of the preamble to Directive 2001/29, that there is a high level of protection for copyright holders. According to the CJEU, it is apparent from Article 3(1) that, for there to be an “act of communication”, it is sufficient for the work to be made available in such a way as the persons forming the “public” may access it, irrespective of whether they availed themselves of that opportunity.

The CJEU therefore held that the provision of “clickable links” to copyright works must be considered to be an “act of communication” within the meaning of Article 3(1).

It is on the second criterion – the concept of the “public” – which the CJEU made its most interesting findings. It has been provided under recent EU case law that the term “public” in Article 3(1) refers to an indeterminate number of potential recipients and implies, moreover, a fairly large number of persons. It therefore follows, according to the CJEU, that a site operator making content available online is making that content available to an indeterminate and fairly large number of recipients, and so is making a “communication to the public”.

In order, however, to be covered by the concept of “communication to the public” under Article 3(1), the initial communication by a site operator that is also made available by a third party (i.e. Retriever Sverige in this case) by the same technical means must be directed at a “new public”, i.e. a public that was not taken into account by the copyright holders when they authorised communication to the public by the site operator.

As the articles by Svensson and his co-claimants were displayed on the Göteborgs-Posten site without any restrictions, the CJEU held that the links on the Retriever platform made the articles available to the same “public” as that to which the articles were made available by the Göteborgs-Posten site. As such, since there is no “new public”, the authorisation of the copyright holders (i.e. Svensson and his co-claimants in this case) is not required for a communication to the public such as that made by Retriever Sverige.

On the other hand, where a link enables a user to circumvent restrictions (such as a subscriber paywall) or facilitates access to copyright works that are no longer available on the site on which they were originally communicated, then all those users who would otherwise be unable to access the copyright works would be deemed a “new public”, and the permission of the copyright holder would be required.

The CJEU also made clear that this finding would not be altered even if it were held by the Svea Court of Appeal that users of the Retriever service were led to believe that the articles in question were originating from the Retriever service, rather than the Göteborgs-Posten site, as the criterion of a “new public” would still not be satisfied.

On the fourth question, the CJEU held, somewhat uncontroversially, that it is not possible for Member States to provide 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), as this would undermine the fundamental objective of Directive 2001/29 to remedy legislative differences and legal uncertainties that exist in relation to copyright protection.

Comment

This is an important decision that clarifies the copyright position underlying the ubiquitous practice of hyperlinking.

It will be of considerable comfort to content aggregation services such as Retriever Sverige that linking to content which is freely accessible on the internet does not amount to copyright infringement. This remains the case even if the impression is given that the content has originated from the aggregator’s website rather than from the site on which the material was originally published. This means that even so-called “embedded links” are not infringing, as the criterion of a “new public” has not been satisfied.

Equally, although it might not seem so for Svensson and his co-claimants in this case, this judgment provides welcome clarity for copyright owners in relation to services that circumvent access restrictions or make available content that has previously been taken down. In these circumstances, the CJEU was clear that such actions would amount to making available to a “new public” and so would constitute an act of copyright that requires the copyright owner’s authorisation.

Luke Anthony, Associate, Michael Simkins LLP

Article written for Entertainment Law Review.

1. Case C-466/12
2. http://www.retriever-info.com/en/om-oss/
3. http://www.retriever-info.com/en/category/media-coverage/
4. Referring to Case C-607/11 ITV Broadcasting and Others [2013] ECR, paras 21 and 31