The CJEU has ruled that Article 3(1) of the Information Society Directive (2001/29/EC) must be interpreted as meaning that providing clickable hyperlinks to works which are freely available on another website does not constitute an act of communication to the public.

Retriever Sverige, a media monitoring service operates a website which provides its clients with lists of clickable links to articles published on third party websites, according to the user's preferences. A number of individual journalists who wrote articles for a major daily newspaper in Sweden brought action in the Stockholm District Court against Retriever on the basis that as a result of the services it provided on its website, they infringed the journalists' exclusive right to make their works available to the public.

Retriever argued in its defence that its actions did not amount to the transmission of any protected works and that its activity was limited to indicating to its clients websites on which works of interest could be found.

Questions referred to the CJEU

The Svea Court of Appeal referred four questions to the CJEU for a preliminary ruling:

  1. If anyone other than the holder of copyright in a certain work supplies a clickable link to the work on his website, does that constitute communication to the public within the meaning of Article 3(1) of Directive 2001/29?
  2. Is the assessment under question 1 affected if the work to which the link refers is on a website on the Internet which can be accessed by anyone without restrictions or if access is restricted in some way?
  3. When making the assessment under question 1, should any distinction be drawn between a case where the work, after the user has clicked on the link, is shown on another website and one where the work, after the user has clicked on the link, is shown in such a way as to give the impression that it is appearing on the same website?
  4. Is it possible for a Member State to give wider protection to authors’ exclusive right by enabling communication to the public to cover a greater range of acts than provided for in Article 3(1) of Directive 2001/29?

The CJEU proceeded to issue its judgement without the benefit of an Advocate General's opinion.

CJEU ruling

  • In relation to the first three questions, the CJEU reasoned that the concept of a communication to the public involves two cumulative criteria; (i) an "act" of communication; and (ii) a communication to a "public".
    • It determined that the provision of a hyperlink constituted an act of communication given the broad meaning of the term and noted that it was sufficient that a work is made available in such a way they the public may access it, irrespective of whether they in fact take that opportunity. Therefore whether a user actually clicks on a link which is made available to them is irrelevant.
    • The CJEU went on to reason that an act of communicating a work by providing a hyperlink to it on a website is aimed at all potential users of that website, which is an indeterminate and fairly large number of recipients and therefore constitutes the act of making that work available to the public.
  • However in order to constitute a communication to the public for the purposes of Article 3(1) of the Directive, a communication of the same works covered by an initial communication (i.e. the articles which have already been made available on another website on the Internet), must also be directed at a new public.
  • The CJEU concluded that the provision of hyperlinks did not make the works available to a "new public" that was not taken into account at the point of the initial communication because all Internet users had free access to them prior to the provision of the hyperlink as they could directly access the original site prior to being provided with the hyperlink.
  • The CJEU also held that this reasoning is not affected by the acts of linking to third party websites by way of "framing" its contents to give the impression that the user has not left the original site because it does not alter the conclusion set out above.
  • If however, a hyperlink makes it possible for users to circumvent restrictions put in place on the referred website which seek to restrict public access and, without the hyperlink, those users would not be able to access the works, then they will be deemed to be a new public and this authorisation by the website operator will infringe.
  • The fourth question referred concerned whether Member States can confer wider protection than that set out in Article 3(1) of the Directive; the CJEU confirmed that this is precluded due the effect it would have on legal certainty in the EU.

Implications and comment

The clarification on the position in relation to hyperlinking will be welcomed by those who provide hyperlinks to third party content (or have users who do so). The result reached by the CJEU is perhaps unsurprising. A contrary ruling would have challenged the basic hypertext infrastructure of the internet. However, the reasoning used by the CJEU was surprising and leaves a number of uncertainties which will likely be tested in future cases, including the extent to which the form, extent and efficacy of any circumvention restrictions in place would impact upon an analysis of whether users will be deemed to constitute a new public. It is unclear whether, for example, a poorly implemented circumvention restriction would still have the effect of rendering users a new public, if in fact users could still potentially access the site because a circumvention restriction fails.

It is also unclear what circumvention restrictions mean and whether they are limited to technical means. For example, if a website is freely accessible but attempts to restrict access to certain works through its terms and conditions but only with respect to particular categories of users, for example allowing academic users to access content, but not others, it is unclear whether this would constitute a circumvention restriction or not.

More fundamentally, the decision is in stark contrast to the position taken by the CJEU in its recent ITV v TVCatchup decision (our previous alert on this can be seen here), where it held that TVCatchup was engaged in a communication to the public. In that case the court did not rely on the new public argument (indeed it seemed to dismiss it), but rather focused on the intervention in the distribution channel by TVCatchup. That means that there is a line located somewhere beyond a mere link (which is a technical intervention) where a communication to the public occurs. All eyes will now be focused on the upcoming decision in Case C-348/13 Bestwater (on which, see here) which was stayed pending the outcome in Svensson, Bestwater relates to embedded videos. It will be interesting to see whether the CJEU takes a different approach to this different (though technically not so different) type of link.

The Svensson decision also fails to address the consequences of the Infopaq I decision, as interpreted by the UK Court of Appeal in the Meltwater case (on which, see here). In Infopaq I the court held that there was no de minimis length of text for the purposes of determining whether a whole or part of a literary work had been taken by a defendant (11 words was enough). As evident in Meltwater, where headlines were in issue, most links use text from the source work. There is nothing in Svensson which would appear to preclude a claim based on the reproduction right in Art 2 of the Information Society Directive.

And finally, one might ask, what about the sui generis database right? It remains to be seen whether rightsholders will look again at this infrequently used right to see whether they can get around decisions like Svensson. On this topic, see our report on the Innoweb decision below.

As such, while the decision does offer some welcome further definition of the scope of the communication to the public right, there are still a lot of questions which remain when it comes to the application of copyright on the internet.

The CJEU's judgment can be seen here.