In a much anticipated judgment, the Court of Justice of the European Union yesterday in Svensson v Retriever Sverige AB (C- 466/12) held that hyperlinking freely available Internet content on another website does not amount to an unlawful "communication to the public" that would require the consent of the copyright owner of the linked content. While the case concerned hyperlinking on another Internet website, the decision also has wider implications for linking activities on social media platforms. The Court's decision had the potential to affect the way the Internet has effectively operated for many years through the concept of linking to content and so the ruling handed down yesterday by the Court of Justice does not really come as a surprise.

The business impact of the decision is as follows:

  1. It is not copyright infringement to hyperlink to freely available copyright protected content on the Internet;
  2. In order for copyright owners to prevent such third party linking they will have to put in place protection measures such as a password protecting the website or otherwise restricting access to a defined class of subscribers; and
  3. Member States are not entitled to provide for more restrictive rules on the lawfulness of third party linking than those set out above.

The case was taken in Sweden by journalists whose articles were being linked on a news aggregator website operated by the defendant. The journalists were seeking compensation for the unauthorised linking to their content. The Swedish courts essentially asked the Court of Justice the following questions:

  1. Whether Article 3(1) of Directive 2001/29 (the "Directive") concerning copyright in the information society and the concept of "communication to the public" is to be interpreted in such a way that clickable links to copyright protected works available on another website constitutes a copyright infringement if the works concerned are freely available; and
  2. Whether Members States are free to interpret Article 3(1) and the concept of "communication to the public" more broadly to include further activities than those referred to in that provision.

In relation to the first question, the Court of Justice held that the provision of a hyperlink on the Internet is an "act of communication" in that it makes the work available to others irrespective of whether they avail themselves of the opportunity. However, the second criteria for an unlawful communication to the public requires that the communication must, in accordance with previous cases, be to a "new public" and this means a new public that is not in the contemplation of the copyright owner who has originally made the work available.

As the journalists' content was freely available and therefore directed to the same public covered by the initial posting on the Internet there was no new public involved.

Therefore, the consent of the journalists was not required for the subsequent linking activity by a third party. The Court of Justice held that the result would be different if the third party linking activity circumvented protection measures to the content such as the copyright owner password protecting the website. In such a case, the content is being made available to a new public and authorisation of the copyright owner would be required for such linking activity. In relation to the second question, the Court of Justice held that any broadening by Member States of the concept of "communication to the public" in the Directive would amount to legislative differences and thus provide third parties with legal uncertainty. For this reason, this could not be permitted because the functioning of the internal market would be adversely affected. Therefore, the decision of the Court of Justice on third party hyperlinking is final in the sense that it is not subject to variations in national laws.

The decision is broadly in line with the thinking evidenced in the recent Irish Copyright Review Committee Report "Modernising Copyright" (2013). That report recommended that linking by itself should not infringe copyright, except where the provider of the link knew or ought to have been aware that it connected with an infringing copy.

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