Commentary on the CJEU decision in Svensson v Retriever Sverige, on copyright and links to items on external websites

The Court of Justice of the European Union has recently issued an important decision on the legality of hyperlinking, i.e. where one website redirects internet users to another website via a clickable link. In essence, it confirmed that, in many situations, hyperlinking does not infringe copyright.

In Svensson v Retriever Sverige AB (C-466/12), a group of journalists wrote articles for Swedish newspaper Göteborgs-Posten, which were published in print and on the newspaper’s website. A third party – Retriever Sverige – operated a news aggregator business, providing clients with links to articles published on other websites. As part of this service, it provided links to the Göteborgs-Posten articles, without permission from the journalists. The journalists claimed compensation on the basis that the links constituted infringement of copyright. More specifically, they claimed Retriever Sverige had infringed their exclusive right to make the articles available to the public.

The Swedish court referred a number of questions to the CJEU, focusing on the interpretation of the Information Society Directive (2001/19/EC). Article 3(1) provides that member states shall provide authors with the “exclusive right to authorise or prohibit any communication to the public of their works”. Such communication without the author’s permission is copyright infringement.

Reaching a "new public"

In deciding whether the provision of links by Retriever Sverige had been “communication to the public” of the articles, the CJEU referred to ITV Broadcasting (C-607/11) and stated that the assessment was twofold, requiring consideration of (i) the “act of communication”; and (ii) the concept of the “public”. It held:

“Act of communication” must be construed broadly, in line with the Directive’s recitals, which require a high level of protection for copyright holders. The provision of a link to a copyright protected work constitutes an “act of communication” of that work.

The journalists had already authorised communication of the articles to the public (on the Göteborgs-Posten website). The hyperlinked articles had not changed, and the method of communication (online) was the same. The further communication would only infringe if the public to whom it was communicated was a “new public”. If the links provided by Retriever Sverige merely communicated the articles to the same public, they did not make the work any more widely available than originally anticipated by the journalists.

In this case, since the articles were available on the Göteborgs-Posten website without restriction, the Retriever Sverige links did not make them available to a new public, so there was no copyright infringement.

Had the links allowed users to access work which was previously available only on a more limited basis, the communication would have been to a “new public”. So, if the links had allowed internet users to avoid a requirement to pay for access, or circumvent territorial access restrictions, Retriever Sverige would have infringed the journalists’ copyright.

The CJEU also noted that assessment of whether there was infringement could not be affected by the manner in which the articles were displayed once the link was clicked. In some instances, when internet users click on a link, the work will appear in such a way as to give the impression that it is on the website providing the link, rather than the original website. The CJEU concluded that this was not relevant to infringement.

Finally, it ruled that individual member states could not provide enhanced protection for a copyright holder in these circumstances.

Questions remaining

This decision follows a long period of relative uncertainty on the law around linking. At first glance, this is a concise clarification. The conclusion reached, that a website can link to a third-party website without that party’s permission – provided that, by doing so, the content is not made more widely available than it already is – is straightforward and logical. That said, there are a couple of points to note.

Some website owners have terms of use which provide that parties may not link to the site without permission and/or that parties may not use the site for commercial purposes. The case did not explore the possible impact of such terms and conditions. For instance, had the newspaper used such terms, might it have had a claim against Retriever Sverige in contract? Alternatively, might such terms be used in the assessment of how widely the work was originally made available?

Although Svennson clarifies the law on linking, copyright law remains uncertain in relation to other aspects of making online content available to the public. A number of cases are currently before the CJEU (BestWater International (C-348/13), relating to embedding; C More Entertainment (C-279/13), relating to broadcasts; and Meltwater (C-360/13), relating to copies made by end users), and we will have to await these decisions for more clarity on the circumstances in which additional permission is required from the copyright owner before online works can be disseminated further.

Nonetheless, the Svensson decision provides welcome clarity in relation to linking. 

The Author
Susan Snedden, director, and Steph Innes, senior solicitor, Maclay Murray & Spens LLP
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