The Court of Justice of the European Union (CJEU) recently made a ruling in the case of Svensson et al vs Retriever Sverige AB (case C-466/12, here) on the question of whether supplying a clickable link to a copyrighted work would be an infringement of the copyright in that work.
Thankfully the CJEU has ruled that if content is freely available on a website, providing a clickable link to it will not be a copyright infringement.
The question arose because under EU law an author has the exclusive right to authorise or prohibit any communication to the public of their works. The case was brought by journalists who had published articles in a Swedish newspaper. Those articles were also feely accessible on the newspaper’s website. Retriever operates a website offering media monitoring and various other services which involve them providing their clients with lists of clickable links to other websites. The journalists alleged that this activity infringed their exclusive right to communicate their works to the public. There was also a dispute between the parties over whether it was clear to clients of Retriever whether they had been redirected to another site or not.
An Act of Communication
First of all, the CJEU considered whether providing a clickable link would be an “act of communication”. They deemed that a broad interpretation had to be taken in the interests of protecting copyright holders, and that it is sufficient for a work to be made available for public access, irrespective of whether the public do actually access the material.
Therefore supplying a clickable link was held to constitute a communication to the public.
Meaning of the “Public”
Next, the CJEU considered whether the communication involved in providing a clickable link would be made to the “public”. It was held that a manager of a website does make a communication to the public when they provide a clickable link.
However, crucially, the CJEU took into account the original “public” addressed by the original communication by the copyright owners (via the content of their websites), and stated that there would only be a copyright infringement if the communication was directed to a new public, who were not part of the audience of the original communication.
Because the articles were freely available to anyone with an internet connection, the provision of clickable links did not lead to the works being communicated to a new public and therefore there was no copyright infringement.
Appearance of Redirection to a Different Site
The facts of whether Retriever’s clients were given the impression that they were staying on Retriever’s site or whether it was made clear to them that they were being redirected was not addressed. However the CJEU confirmed that, even if Retriever’s clients had the impression that the content was appearing on the site on which the link is found, that there would still be no copyright infringement.
Paywalls
The judgement does rely on the original works being made freely accessible. So if a copyright work is behind a paywall, then the provision of a clickable link that makes the content freely accessible to anyone would infringe copyright, because the “public” that has access to the content via the clickable link is a “new public” going beyond the restricted audience that has paid for access to the content originally.
An intervention to circumvent restrictions to public access therefore is a copyright infringement.
EU Legal Question
The CJEU also ruled on a question that had been referred to them, regarding whether EU member states would be free to define additional acts that would qualify as “communication to the public” in order to strengthen authors’ rights. They ruled that this would not be permitted, for the sake of maintaining harmonised law across the different EU member states.
Conclusions
This is one of those “sigh of relief” decisions. There could have been wide ramifications if the CJEU had ruled that there was a copyright infringement, seeing as hyperlinking in general is such a fundamental part of the internet. It seems entirely reasonable that once content is “out there” without any particular restriction, that parties would be free to link to it.
This has particular relevance to news aggregation sites and will be of some comfort.
It will also be interesting to see how this affects another case, NLA vs Meltwater, which was referred to the CJEU by the English Supreme Court last year. This is another news aggregation case although it focuses on a different question – whether users of a news aggregation service infringe copyright made in “temporary copies” made on screen or in the cache or a browser when browsing content. This kind of copying is generally exempted from infringement, but the UK Court has referred questions to the CJEU over points of interpretation under European law on this matter.
So while this current case is a relief we will need to keep an eye out for the next decision that could make a fundamental difference to the basic functioning of the internet. It all goes to show how the law struggles to keep up to date with advances in technology. We will of course keep you posted on these matters!