Recently, the ECJ has published its expected judgment in Case C-466/12, answering the questions refered for a preliminary ruling by the Court of Appeal of Svea (Sweden), in the proceeding between Swedish journalists of the Götebors -Posten and Retiever Sverige, a company which operates a website dedicated to providing clickable internet links (hyperlinks) to articles published on the Götebors –Posten’s website, without permission.
The main object of the request for a preliminary ruling concerns the interpretation of Article 3(1) of Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonization of certain aspects of copyright and related rights in the information society, which states that Member States shall provide authors with the exclusive right to authorize or prohibit any communication to the public of their works, including making available to the public their works. In short, the ECJ was asked whether a clickable link to protected works constitutes an act of communication to the public.
On those grounds, the ECJ rules:
“Article 3(1) of Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonization of certain aspects of copyright and related rights in the information society, must be interpreted as meaning that the provision on a website of clickable links to works freely available on another website does not constitute an ‘act of communication to the public’, as referred to in that provision.”
Although it could be understood that links do not constitute an act of communication to the public, analyzing the clarifications that the ECJ set out in his judgment, the reality is in fact the opposite.
As the ECJ points out in his judgment, the concept of communication to the public includes two cumulative criteria:
- an “act of communication” of a work. It is sufficient that a work is made available to a public in such a way that the people forming that public may access it, concluding that in circumstances such as those in the case in the main proceedings, the provision of clickable links to protected works must be considered to be “making available” and, therefore, an “act of communication”.
- the communication of that work to a “public”, where the term “public” refers to an indeterminate number of potential recipients and implies, moreover, a fairly large number of people.
As a result, an act of communication, such as that made by a website by means of clickable links, is aimed at all potential users of the foresaid site, that is to say, an indeterminate and fairly large number of recipients, and it is an act of communication to the public.
However, following the doctrine of the ECJ (Cases C-306/05; C-136/09, y C-607/11), it is required that, in order to be covered by the concept of “communication to the public”, the communication must also be directed at a “new public”, that is to say, at a public that was not taken into account by the copyright holders when they authorized the initial communication to the public”, as in the main proceedings, where works were made freely available to a public, with the authors’ consent.
On the other hand, users of the site on which that link appears will be consider a new public where a clickable link makes it possible for them to circumvent restrictions put in place by the site on which the protected work appears.
It is even set out by the ECJ, that this conclusion in no way will be affected by the possibility for users to click on the link, the work appears in such a way as to give the impression that it is appearing on the site that contains the link whereas in fact that work comes from another site, activity known as framing. However, the ECJ does not assess whether the framing may or not infringe others intellectual property rights or even acts of unfair competition. Acts, which probably occur with framing practice, because such activity involves, at least, an abusive and illegitimate advantage of the linked page effort.
Despite the ECJ’s attempts of clarification, this judgment is liable to be diverging interpretations, because the indeterminacy of the term “new public”, will be interpreted and applied by National Courts to similar, but not identical, cases. Consider, for example, the case where the content is made freely available to the public in a website directed to a particular professional sector, is it or not a new public the potential users of a website aimed at a completely different professional sector where a link to the original content is included?
What seems clear, at least for now and until cases C-279/13 (More Entertainment) and C-348/13 (BestWater International) will be resolved, is that links to content made available to the public without the rights holders’ permission are acts of communication to a new public, and therefore a violation of the copyright holders’ rights.