In Svensson and Others v Retriever Sverige AB (C466/12), the CJEU ruled earlier this month that posting hyperlinks online to redirect users to copyright protected works, which are already freely accessible on another website, does not constitute an infringement.
The Claimants in this case are all journalists for the Göteborgs-Posten newspaper. Their articles were published both in the newspaper and online on the newspaper’s website, where they were freely available. Retriever Sverige, a Swedish company, posted hyperlinks to the articles on the Göteborgs-Posten website without obtaining consent.
The CJEU was asked by the referring court to consider four questions. The first three questions asked in essence whether Article 3(1) of Directive 2001/29/EC (the “InfoSoc Directive”) “must be interpreted as meaning that the provision, on a website, of clickable links to protected works available on another website constitutes an act of communication to the public as referred to in that provision, where, on that other site, the works concerned are freely accessible”.
Article 3(1) of the InfoSoc Directive states that:
“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”.
In summary, the CJEU concluded that:
• Article 3(1) includes two criteria – namely, an “act of communication” of a work and the communication of that work to a “public”;
• A work that is posted on a website is communicated to the public because it is made available to the public;
• A hyperlink to a work may make it available to the public, irrespective of whether such public chooses to click on the hyperlink to access such work;
• However, in order to be covered by the concept of “communication to the public” within the meaning of Article 3(1), a communication concerning the same works as those covered by the initial communication and made by the same technical means as the initial communication must also be directed at a new public i.e. at a public that was not taken into account by the copyright holders when they authorised the initial communication to the public.”
The CJEU held in this case that making available works, which are already freely available on another website, by means of a clickable link to such website does not lead to the works in question being communicated to a new public. As such, there is no infringement of the copyright holder’s exclusive right as provided for by Article 3(1)). The CJEU noted that the position would be different if a hyperlink to a work circumvented restrictions put in place to limit access to a protected work to, for example, paying subscribers. Such hyperlink would, then, constitute communication to a new public not taken into account by the copyright holders when they authorised the initial communication.
Lastly, the CJEU ruled that Member States are not permitted to give wider protection to authors’ exclusive right by enabling “communication to the public” to cover a wider range of acts than provided for under Article 3(1). To permit this would undermine the very objective of the InfoSoc Directive which aims to create harmonisation of copyright and related rights at Community level.
The full judgment can be found at the following here.