Copyright Holders Cannot Prevent Links to Freely-Available Content from Being Posted Online

by White & Case LLP

The Svensson case is a landmark decision by the European Court of Justice ("ECJ") that enshrines the right to create clickable links towards copyrighted content which is freely available on the internet.[1] The ECJ ruled that such linking does not require the author's consent. More specifically, the decision provides details regarding the notion of "communication to the public", as set out in Article 3 of Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonisation of certain aspects of the copyright in the European Union and related rights in the information society (the "Directive").[2] Article 3 of the Directive grants the author the right to allow or forbid protected content from being communicated to the public.

Several Swedish journalists, whose articles were lawfully published on a newspaper website, brought an action for copyright infringement against a third-party website which contained clickable links to their articles. After the Stockholm District Court had rejected their claims, the plaintiffs brought an appeal in front of the Svea Court of Appeal referring a number of questions to the ECJ.

The ECJ applied a two-step test to determine whether the defendant had communicated these articles to the public as follows: by verifying (1) the existence of an act of communication and (2) its communication to the public.

On the first condition, the ECJ held that the provision of clickable links to protected content constitutes an act of communication because the content is made available to users of the website where clickable links are displayed, regardless of whether or not such users end up clicking on the links displayed (points 18 and 19 of the decision).

As for the second condition, the ECJ ruled that protected content is indeed conveyed to the public but not to a new public, meaning a public not taken into account at the time of the initial communication. In other words, the content is made available to the same public whether it is accessed through the newspaper website or through the defendant website. The Court based its reasoning on the fact that, in the current matter, the content was freely accessible on the newspaper website and was not protected by any specific measures (point 27 of the decision). However, a clickable link that would open access to initially restricted content would constitute a communication to a new public, thus requiring authorization of the author (point 31 of the decision).

This is a significant case as the ruling applies to all types of clickable links (i.e external links that take the user to another website or embedded links allowing the user to access third-party content on the website where such content is embedded).

French Courts have thus far taken different positions on this issue. Indeed, prior to the Svensson case, it was found that the website operator having included an online link to infringing materials should be held liable.[3] In a different matter, it has been ruled that the mere linking to another website does not constitute an act of communication.[4] This clarification from the ECJ will help minimise the current legal uncertainty.

[1] - European Court of Justice, Svensson et al. v. Retriever Sverige AB, 13 February 2014, C-466/12
[2] - It is not the first time that the exact scope of the rights granted to authors by Article 3 of the Directive is subject to interpretation. In European Court of Justice, SGAE v. Rafael Hoteles SA, 7 December 2006, C-306/05 the Court ruled that the distribution of signal by means of television sets by hotels to customers staying in its rooms constitutes communication to the public. In European Court of Justice, ITV Broadcasting Ltd et al. v. TVCatchup Ltd, 7 March 2013, C-607/11, the Court ruled that the concept of communication to the public covers a retransmission of the works included in a terrestrial television broadcast under certain circumstances
[3] - French Supreme Court, Bac Films et al. v. Google Inc et al., 12 July 2012, nĀ°11-13669
[4] - Paris First Instance Court, M6 Metropole Television et al. v. SBDS, 18 June 2010 confirmed by Paris Court of Appeal, M6
Metropole Television et al. v. SBDS, 27 April

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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