The Court of Justice of the European Union issued its long-awaited judgment in in Case C-466/12 Svensson regarding the legality of hyperlinking on 13 February.
The case had the potential to upend one of the fundamental building blocks of the internet and electronic communication by deciding that providing links to third party content constituted a “communication to the public” of that third party content and was therefore an infringement of copyright. Thankfully, the Court took the common sense position that linking to content freely accessible on another website does not fall within the scope of communication to the public under Article 3(1) of Directive 2001/29 (the Copyright Directive).
However, the Court did say that links which would have the effect of circumventing restrictions (such as, potentially, geographic restrictions, paywalls or other sign-in requirements) would be communicating the work to a public not contemplated originally by the copyright holder and could therefore be infringing. In addition, the Court made it clear that Member States are not free to widen their interpretation of communication to the public beyond that set out in the Copyright Directive.
The Claimants in the main proceedings were journalists whose articles were published in the newspaper Göteborgs-Posten and on its website. The Defendant, Retriever Sverige, was a news service which provided its subscribers with lists of links to articles. In the case of Göteborgs-Posten, the articles were freely accessible on the website. The parties were not in agreement as to whether it was clear to users of the Defendant’s service whether they were being taken to a different website to view the articles.
The Svea hovrätt (one of Sweden’s appellate courts) referred four questions to the CJEU. The first concerned whether the provision of a “clickable link” to a copyright work on a website by someone other than the copyright holder was a communication to the public. The second and third questions were qualifications to the first, asking whether the answer would be different if access to the work was restricted in some way, or if the user clicking on the link received the impression that they were remaining on the same website.
The fourth question asked whether Member States were entitled to extend independently the definition of communication to the public under Article 3(1) of the Copyright Directive to include a wider range of acts.
The CJEU’s Judgment
In a relatively short judgment, and unusually without seeking the opinion of the Advocate General, the Court held that the answer to the fourth question was an unequivocal “no”, since allowing Member States leeway to enhance the scope of their copyright protection would be contrary to the harmonising objective of the Copyright Directive and would lead to legal uncertainty. In so ruling, the Court struck a serious blow to Article 20 of the Berne Convention, which allows signatories to create “special agreements” to grant stronger protection to rights holders.
The Court answered the remaining three questions together, first deciding that a hyperlink is an act of communication in that it makes the linked-to content available to a public (even if nobody actually chooses to access it). They explained that “public” referred to “an indeterminate number of potential recipients, and implies, moreover, a fairly large number of persons”, and that in the context of a website this means all potential users of the site. However, where the communication in question is of the same work as covered by the initial communication and both works are made available by the same technical means, in order to be classified as a “communication to the public”, the Court held that the communication must be to a new public.
This latter concept of the “new public”, being a public to which the copyright holder did not authorise communication of the work in their initial communication (ie on the linked-to website) allowed the Court to avoid the potentially very damaging ruling that hyperlinks, on which the free flow of traffic on the internet depends, infringe copyright in themselves. This could still be the case if the link itself reproduces a portion of the linked-to content which qualifies for copyright protection, as per case C-5/08 Infopaq and the judgment of the Court of Appeal in NLA v Meltwater (2011).
However, the Court qualified the ruling by saying that it applied because the access to the works linked to was “not subject to any restrictive measures”. By contrast, where a link allowed users to circumvent restrictions on the availability of the work (such as membership, a paywall, or presumably geographic restrictions), then the provision of that link to internet users in general would be communication to a new public. In this case, the copyright holder’s authorisation would be required for this further communication.
Perhaps more surprising is the Court’s ruling on the third question, to which it said that its answer to the first question “cannot be called in question were the referring court to find… that when Internet users click on the link at issue, the work appears in such a way as to give the impression that it is appearing on the site on which that link is found, whereas in fact that work comes from another site.”
The court’s construction of Article 3(1), and in particular its emphasis on the need for both works to be the ‘same’, leaves open the question of whether a link to a non-identical reproduction (i.e. a work which reproduces a substantial element of the original), or indeed to an identical, non-authorised copy hosted illegally on a different website, would be found to infringe the communication right. Further clarification from the Court on these questions will no doubt be welcomed by rights holders and may appear in the Court’s anticipated rulings in Case C-348/13 BestWater and Case C-279/13 C More Entertainment.
It is not clear what the Court might consider to be a “restrictive measure”, as referred to in its answer to the second question, other than the obvious paywall or membership point. For example, it remains to be seen whether the Court would consider a site that had online terms and conditions specifically prohibiting linking by third party sites to be such a “restrictive measure”. The question is left open and presumably will be the subject of future cases involving the notion of a “communication to the public”.
A possible consequence of the Court’s decision on the third question is that sites which host content supported by advertisements may find that content embedded or framed on other sites, surrounded by other sites’ advertising (for which the original site will receive no fee). This may lead to a rise in the number of sites which require registration (although this may also have the effect of reducing traffic, thus decreasing advertising revenue). Again, the applicability of this decision may be qualified by the Court’s anticipated ruling in C-348/13 BestWater. We may also see an increase in strict terms of service aimed at preventing such methods of linking. If this occurs, it remains to be seen the extent to which the courts will enforce these terms.