In Svensson and others v Retriever Sverige AB C-466/12, the Court of Justice of the European Union (CJEU) has found that hyperlinking to a copyright work that is already freely available on the internet does not infringe the rights in that work as it is not made available to a “new” public.
Each of the applicants in the main proceedings are journalists who had articles published on a Swedish newspaper’s website. Retriever Sverige operates a website that provides links to articles that are likely to be of interest to its clients, including articles written by the applicants. The applicants argued that by doing so, Retriever Sverige was making their copyright works available to the public without the applicants’ authorisation, and thus infringed their copyrights in the works. The applicants were unsuccessful at first instance and appealed.
The Swedish Court of Appeal sought guidance from the CJEU on 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 harmonisation of certain aspects of copyright and related rights in the information society. Article 3(1) requires 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.
The Swedish Court of Appeal referred a number of questions on Article 3 of Directive 2001/29/EC, essentially asking whether i) providing links to articles already freely available on the internet constitutes making the articles available to the public; and ii) whether a Member State can provide a wider definition in national law of “making available to the public” than that found in the Directive.
On the first point, the CJEU began by noting that its previous decisions confirming Article 3(1) involved two distinct elements: an act of communication and communication to a “public”. The act of communication should be given a broad definition and a hyperlink to a work should be considered making that work available. Equally, as the link is made available to all users of a website, it must be considered a communication to the public.
The CJEU noted, however, that in the current case the copyright works had been made available on a website that was generally available. The CJEU considered that the use of a hyperlink to direct the public to the copyright work did not make the work available to a “new” public. As the work had already been made available to all users who were able to access the work through the hyperlink, no new authorisation from the copyright holder was required to communicate the work to the public via a hyperlink.
As to whether or not a Member State could impose conditions on the use of copyright works that go beyond the authorisation required by Article 3 of Directive 2001/29/EC, the CJEU noted that one of the stated purposes of the Directive is to remove legal uncertainly surrounding copyright protection in the Member States. If a Member State was able to impose stricter conditions,
then the functioning of the internal market would be affected. Article 3 must therefore be interpreted as prohibiting a broader approach to communication to the public other than that stated in the Directive.
This long-awaited decision provides clarity on the lawfulness of using hyperlinks to direct internet users to copyright works. Interestingly, the CJEU dealt with the issue of hyperlinks at a high level and did not address the technical aspects of their use.
The CJEU’s rationale turned on the fact that the articles were freely available already on the internet. This suggests that Retriever Sverige would have infringed the journalists’ rights had the articles been published on a website that was behind a paywall.