In an eagerly awaited ruling handed down on 13 February 2014 the Court of Justice of the EU (CJEU) has decided that the owner of a website may, without the authorisation of the copyright holders, hyperlink to copyright-protected content that is "freely accessible" on another website. This is so even if someone who clicks on the link will have the impression that the work is appearing on the site that contains the link. The CJEU held that for an act of communication to the public to infringe copyright, the communication must be directed to a "new" public. The CJEU added that when a clickable link makes it possible for internet users to circumvent systems on a site that restrict access to the content to the site’s subscribers, "all those users must be deemed to be a new public [and] the holders’ authorisation is required for such a communication to the public".
The case of Svensson and others v Retriever Sverige pitted four Swedish journalists against Retriever Sverige, a media monitoring and aggregation company that provides clickable links to articles published by other websites. The journalists complained to the Stockholm District Court that Retriever had infringed their exclusive right to authorise communication of their protected content to the public by linking to their press articles on the website of the Göteborgs-Posten, where they were published and freely available. The District Court disagreed. Upon appeal, the Svea Court of Appeal decided to stay the proceedings and referred four questions to the CJEU on how the Copyright Directive 2001 should be interpreted.
The CJEU found that whilst providing hyperlinks does constitute an act of "communication to the public", for such a communication to infringe copyright it must be directed "at a public that was not taken into account by the copyright holders when they authorised the initial communication to the public". In the Svensson case the court found that there was no "new" public as the articles on the Göteborgs-Posten website had been placed openly on the Internet, with the authorisation of the rights holders, and were therefore freely accessible to all users.
The Svensson decision is binding on all other EU member states’ national courts or tribunals before which a similar issue is raised; and the CJEU ruled that it was not open to member states in their domestic copyright legislation to broaden the scope of what is considered "communication to the public".
The right decision?
The CJEU’s decision that for an infringement by communication to occur it must be to a "new public", and hence that a link will infringe if it circumvents a restriction on public access, such as on a subscription-only service, is consistent with earlier decisions of the court on the communication to the public right. Those too have turned on whether a new public not contemplated by the rights holder is being served by the communication; if so, there will be the basis for an infringement claim. With hyperlinks forming such an important element in the operation of the Internet, leading users from one location to another, for the court to have come to the opposite conclusion would have had serious ramifications. In consequence, the ruling reinforces the need for rights holders to consider whether to impose restrictions and paywalls if they wish to control and monetise access to their content online.
The decision does not settle the question of whether linking to infringing content constitutes an infringement. That question is still before the CJEU for decision, in the C More Entertainment case. At UK level, though, Mr Justice Arnold in his decision in the FirstRow case last summer had little difficulty in finding grounds to order ISPs to block access to the FirstRow website that was offering links to unauthorised streams of Premier League football matches.