The Court of Justice of the European Union (CJEU) has reached a verdict in the case C-466/12, which concerned whether website owners could, without the copyright holder’s permission, post on their websites hyperlinks leading to the copyrighted content on another website. A Swedish company called Retriever Sverige had published on its website hyperlinks leading to articles on the website of the newspaper Göteborgs-Posten, without asking for the permission of the authors of the articles. The CJEU ruling concerned whether these links constituted an “act of communication” within the meaning of Directive 2001/29/EC on the harmonisation of certain aspects of copyright and related rights in the information society. Under Article 3 of the Directive, Member States must guarantee copyright holders rights which “shall not be exhausted by any act of communication to the public or making available to the public”.
According to the Court, the central question in deciding whether a link constituted an act of communication was whether it was directed at a “new public”. This in turn depended on whether the public in question had been taken into account by the author of the copyrighted content as a potential public when publishing the original communication. In the Court’s view, this would be the case if the links were used to circumvent technical barriers that limited the copyrighted content only to subscribers. However, if the website was freely accessible, the users who clicked on them could not be considered a new public, and the links would not constitute an act of communication. In this case, the links would not be in violation of the Directive, even if the users who clicked on the links might have the impression that the content appeared on the same site as the link.
The Court also ruled that the Member states could not give copyright holders broader protection by interpreting the term “act of communication” flexibly. This would undermine the aim of the Directive, which was to harmonize copyright legislation within the EU and thus eliminate legal uncertainty.