It is the moment that many have been waiting for and it has been worth the wait? The Court of Justice of the European Union (CJEU) has just issued its eagerly anticipated decision in Case C-466/12 Svensson. In essence, the Court found that hyperlinking to a protected work on another website does not constitute a copyright restricted act of “communication to the public” in circumstances where a work is freely available on the initial site.
The CJEU’s logic is that if a copyright work is freely available on the initial site and all internet users could have unrestricted access to it, the creation of a hyperlink to that work is to a “public” anticipated by the copyright owner and is therefore not a restricted act. Copyright infringement will only occur in circumstances where a hyperlink is created without the copyright holder’s consent and where the protected work is directed at a “new public”. There will be a “new public” according to the CJEU where the copyright owner did not initially permit its work to be made available to that audience or where access to the protected work is subject to any restrictive measures on the initial site and the hyperlink appears to circumvent these restrictions.
This decision is likely to bring a measure of relief to website owners and managers. However, it is important to note the practical implications of this decision. In practice, it means that if you want to provide a hyperlink then it will be necessary to look at the “linked” site and see who the intended audience is. If the site is freely accessible to all internet users then hyperlinking is likely to be permitted, but if there are any restrictions in place on the originating site then it is likely to be impermissible and it will be necessary to proceed with caution.
There are still two references concerning hyperlinking which have yet to be determined by the CJEU and it is very likely that this judgment will affect their outcome. The C More Entertainment Case C-279/13 concerns whether a hyperlink on a website which enables users to watch sports matches for free constitutes a “communication to the public”. If, as appears from reports on this case, the “linked” sports site is a restricted access site and the hyperlink appears to circumvent these restrictions then hyperlinking is likely to be found to be a copyright restricted act. InBestWater International, Case C-348/13 the question is whether a film about water pollution, created and paid for by BestWater but made available by competitors’ links on YouTube, amounts to a “communication to the public”. If Bestwater has made its film available to all internet users via its website then it could be expected that hyperlinking to the video by competitors will not constitute a “new public” and it is likely not to constitute a copyright restricted act.