Svensson: Has the CJEU saved the Internet?
On 13 February 2014, the Court of Justice of the European Union (CJEU) delivered its judgment in Nils Svensson and Others v Retriever Sverige AB, Case C-466/12, a landmark decision about the operation of copyright on the Internet. The CJEU ruled that the owner of a website may use 'hyperlinks' to redirect Internet users to protected works available on other websites without the authorisation of the copyright holder of the linked website, provided that the linked website is 'freely accessible', i.e. can be accessed by anyone using the Internet.
Retriever Sverige operates a website providing a list of clickable links to articles published by other websites. The claimants were journalists who wrote articles for the Göteborgs-Posten news website and whose articles were being linked by the Retriever Sverige website. The claimants argued that Retriever Sverige's hyperlinks constituted an infringement of the claimants' copyright by making a communication to the public without the authors' permission contrary to Article 3 of Directive 2001/29 (the 'InfoSoc Directive').
The case made its way to the Svea Court of Appeal, which stayed the proceedings and referred four questions to the CJEU:
(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 the InfoSoc Directive?
(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 the InfoSoc Directive?’
In answer to the first question the CJEU determined that a 'communication to the public' requires both a 'communication' and also a 'public'. The hyperlinks were determined to be 'making available' and were therefore 'an act of communication'. However, the CJEU held that a 'public' must be a 'new public'. In other words, the communication must be "directed at a new public… at a public that was not taken into account by the copyright holders when they authorised the initial communication to the public" (this point was already settled case law following the CJEU's ruling in ITV Broadcasting). In the circumstances of Svensson, the public targeted by the journalists' original articles consisted of all potential visitors to the Göteborgs-Posten website which was unrestricted and therefore could be viewed freely by any Internet user. Consequently, the links provided by Retriever Sverige were not to a 'new public' and there was no need to obtain the authors' consent.
In response to the second question, the situation would be different if the link allowed users to bypass restrictions designed to limit access (such as a paywall, used by The Times and The Wall Street Journal for example) and such users were not taken into account by the copyright holders when the initial communication was authorised. Such users would constitute a 'new public'.
Regarding the third question, it was irrelevant that the Internet user who clicks on the hyperlink is given the impression that the linked work is appearing on the site that contains the link.
Answering the fourth question, the CJEU held that Member States do not have the right to give wider protection to copyright holders by widening the concept of 'communication to the public' from that contained in the InfoSoc Directive. This would otherwise give rise to legislative differences between Member States, contrary to the purpose of the Directive.
The judgment can be seen as a sensible, practical and balanced resolution of an issue that is integral to Internet use. On the one hand it holds that hyperlinks for 'freely accessible' websites are lawful, which will bring a sigh of relief to website owners which frequently employ hyperlinks as part of their business model, such as news aggregation services. On the other hand, although the judgment did not define the exact parameters of what is 'freely accessible', a copyright holder can still seek protection by placing restrictions on the access of his online content (by use of a pay wall for example). In such circumstances permission is required from the copyright holder before hyperlinking. A practical consequence of this judgment may indeed be an increased use of pay wall protection and other similar restrictions on copyrighted Internet content.
Article written by Nathan Capone, a Solicitor in the IP Enforcement and Litigation group of Field Fisher Waterhouse LLP in London.