An owner of a website may redirect users, via clickable links, to copyright protected works, without requiring the permission of the copyright holders if those works have been made available on a freely accessible basis on another website. Those were the findings of the Court of Justice of the European Union (“CJEU”) in the case of Svensson and others v Retriever Sverige AB, Case C-466/12, as handed down on 13 February 2014.
The CJEU was asked to consider whether the provision of clickable links or “hyperlinks” on a website which link to copyright protected works available on another website fall within the scope of “communication to the public” under Article 3(1) of the Copyright Directive (2001/29/EC) (the “Directive”). Under the Directive, communication to the public is an act requiring the copyright holder’s consent. The case concerned paid-for links provided by a media monitoring website to news articles published both in print and online by Swedish newspapers. The claims were brought by four journalists whose articles had been, on their argument, communicated via hyperlinks without their consent.
An act of communication is defined in Article 3(1) as making a copyright work available to the public in such a way that those members of the public may access it, irrespective of whether they actually do so – i.e. the issue is whether the work is accessible, rather than whether it is in fact accessed. The CJEU held that the provision of clickable links to protected works amounted to “making available” and was therefore an “act of communication” caught by the Directive. In this instance, the communication was to the “public” by virtue of being available to an indeterminate and fairly large number of potential users of the defendant’s website.
Under earlier (Case C‑136/09 Organismos Sillogikis Diacheirisis Dimiourgon Theatrikon kai Optikoakoustikon Ergon; and ITV Broadcasting and Others, see our previous article here) where there has already been a communication of the copyright works by the copyright owner (or with his consent), communication without his consent by the same technical means (here, via the internet) would only infringe the copyright holder’s rights if the unauthorised communication is directed at a “new public”. Communication, by the same means, to the same public to whom the original communication was made, does not infringe.
In Svensson, the CJEU found that, the users of the defendant’s website were part of the same public to whom the initial communication of the protected works was made online. On that basis, there was no unauthorised communication to a new public. Users who accessed the protected works via the defendant’s hyperlinks could have accessed them directly on the website on which they were originally communicated (the authors having agreed to publication on that website).
A key point is that the copyright works were freely accessible to the public on the website on which they were originally communicated. If there had been restrictions in place to limit the access to the works and any hyperlink sought to circumvent these, the position would be different. In those circumstances, provision of the hyperlink would be providing access to the copyright works to users who would otherwise not have been able to access them. Those users would be a new public. Authorisation by the copyright holders for the original communication would not have contemplated that new public, and therefore their permission would be required under Article 3(1) of the Directive.
Whilst the ruling provides an outcome that accords with many readers’ practical experience of the internet, further case law guidance will be required to clarify how different forms of “restrictions” are liable to affect the scope of “public” to whom the original (authorised) communication was made. This is key to defining the existence and scope of any “new” public to whom an unauthorised communication is made.
Publishers must now also be aware that once content is made freely accessible to the public on their own websites, they cannot prevent the Svensson-type third party activity. This may have ramifications in terms of, for example, advertising revenue. Publishers of copyright works may consider creating log-in requirements for users (whether or not payment is required) in a bid to limit public access. Restrictions of this type may be perceived as an inconvenience by internet users, many of whom take freely available content as a “given”. However, they may offer one way for website owners to ensure that any “per visit” advertising revenue generated by visits to a website’s homepage is not potentially reduced by the distribution of hyperlinks allowing internet users to access copyright content on the relevant website without clicking through the homepage.
One issue not answered by this case relates to the effect, if any, of website terms and conditions prohibiting commercial use on the definition of relevant public. Website terms often prohibit use for “commercial purposes”. If one party provides hyperlinks to another party who clicks on the links and accesses a website for commercial purposes, that second party will be in breach of the website’s terms. From an infringement perspective, that party may also be infringing copyright by copying (in the form, for example, of temporary computer files required to view the website) in a manner not authorised by the website content owner (under the licence granted by the website terms and conditions). Is that party also a “new” public for the purposes of “communication to the public” under Article 3(1) of the Directive? If so, followingSvensson, the first party has also infringed copyright, not by copying but by making an unauthorised communication to a (new) public. Arguably (leaving aside any potential argument that the first party has authorised a breach of the website terms and conditions), accessing a website in breach of its terms does not constitute access by a new public.
We anticipate references to the CJEU on this and other, as yet unanticipated, issues in the coming months and years, as technology enables further potential misuses of copyright works not contemplated by existing European and domestic legislation.