On 13 February 2014, the Court of Justice of the European Union (the “CJEU”) delivered its judgment in the case of Svensson and Others v Retriever AB (C466/12). The court held that a website may provide hyperlinks directing internet users to copyright protected works which are already freely available to the public online without infringing the copyright in those works.
Given the ubiquitous presence of hyperlinks online, this judgment will provide comfort to many online stakeholders. However, as discussed below, it does not afford online stakeholders unchecked authority to link to any online content and raises a number of issues that will need to be considered in future cases.
The applicants in the main Swedish proceedings were four journalists whose articles were published on the Göteborgs- Posten website. Retriever Svergie (the operator of a website which provides hyperlinks to articles on other websites) provided hyperlinks to these articles without the journalists’ permission and the journalists claimed that this constituted an infringement of their exclusive right to make their respective works available to the public.
The Svea Court of Appeal referred a number of questions to the CJEU which were primarily focussed on whether the provision of a hyperlink to a copyright protected work that is freely available to the public online constitutes “an act of communication to the public” of that work for the purpose of Article 3(1) of Directive 2001/29 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 (“Directive 2001/29/ EC”). The implication of an affirmative response from the CJEU to these questions being that the provision of a hyperlink would constitute an infringement of the exclusive right of the author of a copyright protected work to authorise or prohibit any communication to the public of his work in accordance with Articl3 3(1) of Directive 2001/29/EC.
The CJEU found that in circumstances where the author of a copyright protected work has authorised an initial communication of the work to the public, the provision of a subsequent hyperlink to this work could only infringe Article 3(1) of Directive 2001/29/EC where this would result in a communication of the work to a “new public” that was not taken into account by the author when he authorised the initial communication of the work.
The CJEU found that the initial communication of the works in question on the Göteborgs-Posten website was not subject to any restrictive measures and could be freely accessed by all internet users. On that basis, the CJEU determined that the provision of hyperlinks directing internet users to these works did not constitute a communication to a new public that would infringe the author’s rights under Article 3(1) of Directive 2001/29/EC. In the absence of a communication to a new public, the authorisation of the journalists was not required for a communication of the works to the same public through the provision of hyperlinks.
The CJEU noted that the position outlined above equally applies to circumstances where clicking on the hyperlink in question results in the copyright protected work appearing in such a way as to give the impression that it is appearing on the website where the hyperlink is found rather than the original website where that copyright protected work may be found.
The CJEU did, however, make clear that if a hyperlink allowed users to circumvent restrictions put in place on another website designed to restrict public access to copyright protected works (e.g. website subscription fees), those users would constitute a new public, which was not taken into account by the copyright holder when it authorised the initial communication. A communication to a new public through the provision of a hyperlink requires the consent of the author. In the absence of such consent, the provision of the hyperlink will infringe the author’s rights in the work under Article 3(1) of Directive 2001/29/EC.
The central principle of the CJEU’s decision in Svensson is that where a hyperlink relates to copyright protected works that are already freely accessible to the public online, it will not constitute a communication to a “new public” and will not therefore require the copyright holder’s consent.
The CJEU does impose limitations on this principle but the scope of these limitations is not entirely clear and will most likely require further consideration in future cases. For example, it is not clear whether a hyperlink which directs internet users to copyright protected works that are subject to contractual restrictions (e.g. a prohibition on commercial use under website terms and conditions), rather than technical restrictions (e.g. website subscription fees) will also constitute a communication to a “new public”.