On February 13th, the European Court of Justice published a decision which involves copyright protection and freedom of communication in the web.

The  decision may  help to improve and determine the proper development of the information society in Europe, aiming to a harmonized system. In fact, copyright and other related rights regulation is considered by the European Commission an essential component of the implementation of the four freedoms of the Internal Market (Directive 2001/29/EC of the European Parliament and of the Council of 22 may 2001 – hereinafter the “Infosoc Directive”).

The case under focus concerns a Swedish company, Retriever Sverige, which operates a website providing its  clients hyperlinks directed to articles published on other websites. In some cases, the clickable links redirect the user to sites of national and worldwide known newspapers, including the Swedish Gotenborgs-Posten. The authors of the articles object of the hyperlinks redirection, all journalists, asked for a higher level of protection of their copyright before the Stockholm District Court. Notwithstanding the common ground between the parties on the fact that the articles were freely accessible on the Gotenborgs-Posten, the applicants in the main proceeding pointed out that the hyperlink did not make clear that the clients were redirected to another website where the content is available. In the light of this, the applicants called for the obtainment of a compensation on grounds that the Retriever Sverige had used, without their authorization, certain articles written by them. After the rejection of their application by the Stockholm District Court, the applicants brought an appeal before the Svea Court of Appeal.

The Svea Court of Appeal asked for a preliminary ruling before the European Court of Justice on the interpretation of Article 3 (1) of the Infosoc Directive, in order to establish whether the redirection by clickable links to protected works available on other websites, constitutes an unauthorized act of communication to the public, violating the exclusive right of authorization owned by the author of the content.

In its analysis, the European Court of Justice firstly concentrated its attention on the concept of “act of communication”: to this end, the Court considered sufficient “that a  work is made available to  a public in such a way that the persons forming the public may access it, irrespective of whether they avail themselves of that opportunity” (ECJ Judgment - ph. 19 Case C-466/12).

As a consequence, according to the circumstances of the case under focus, the redirection can be considered an act of communication in accordance with the definition provided by the Infosoc Directive.

Further in the analysis, the Court stated that, in order to amount to an act of communication to the public, the protected work must be communicated to “an indeterminate number of potential recipients an implies, moreover, a fairly large number of persons”(ECJ Judgment - ph. 21 Case C-466/12).

As a consequence, the potential public to which the clickable link is available to, falls within the definition given by the Court.

Once assessed that Retriever Sverige is responsible for a “communication to the public” within the meaning of Article 3 (1) of the Infosoc Directive, the Court however highlights that, according to the settled case-law, a communication to the public must also be directed to a “new public”, in order to give rise to an infringement of copyright. In the case under focus, the redirection permitted by the clickable link provided by Retriever Sverige does not amount to a communication to a new public. Indeed, the articles were originally made available on a free access website (the newspaper’s website) and, as a consequence, the public initially targeted by the copyright holders does not differ (and is indeed the same) from the public which would access the same protected content through the hyperlink, because such public is represented  by “all internet users” at large.

In other words, the users redirected by the clickable hyperlinks, were already considered as potential recipients of the initial communication, and, as a consequence, part of the public to which were authorized by the copyright holders to access the copyrighted content. The Court thus concluded that the initial communication made by the journalists was originally aimed also at the potential users of the redirecting website and thus a further authorization was not required.

Comment

The Court has clarified  that hyperlinking to external sources as such does potentially qualify as “communication to the public” and, therefore, may under certain circumstances infringe the exclusive rights of the copyright holders. At the same time, however, the Court set a precise dividing line between prohibited and permitted acts of communication to the public, which refers back on the copyright holder’s original intention to target a different (presumably “restricted”) public, than the one targeted by the linking websites.

The implied license defense seems to resound in the reasoning of the ECJ, although the Court does not make any express reference to the concept, which is indeed controversial across Europe and not harmonized.