Hyperlinks on websites: take care not to link to a new public

An eagerly awaited decision, which looked at the legality of linking to content on the World Wide Web (WWW) in terms of copyright infringement, has now issued in the case of Svensson (Case C-466/12). In this case the Court of Justice of the European Union (CJEU) was asked to consider whether it was permissible to link to content on someone else’s website. The relevant law under which these questions had to be considered was an EU statute, colloquially called the Infosoc Directive, which had been brought in by the EU to harmonize copyright law across European countries.

Pleasingly, the decision seems to have struck a good balance between allowing the WWW to continue whilst giving some protection for copyright owners that choose to put content behind some form of wall, such as a pay wall. There are some ongoing questions left open by Svensson but no doubt these will be addressed as businesses continue to adapt to the world of the WWW.

First, some background. No doubt due to the large challenges brought to the business model of newspapers by the WWW, the Svensson case relates to journalism and the online presentation of articles. The plaintiffs were all journalists for the Göteborgs-Posten newspaper and its associated web-site. The defendant was Retriever Sverige AB, a company that operates a website providing clients with lists of clickable links to articles published by other websites. The issue was whether providing such links infringed the copyright in the articles. After an initial decision by the Stockholm District Court, against the plaintiffs, an appeal was lodged with the Svea Court of Appeal, which noted that this matter fell under EU law 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 Directive 2001/29/EC  (The Infosoc Directive) of the European Parliament and of the Council of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society?
  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 Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society?

When considering the first question, the CJEU noted that, following earlier decisions, the act of “communication” must be considered broadly. Leading on from this, the provision of a clickable link to a protected work (i.e. a work in which copyright exists) must therefore be considered to be “making available”. Therefore a clickable link must be an act of communication to the public within the meaning of Article 3(1) of the Directive.

Paragraph 3.1 of the Directive requires EU member states to provide protection for authors to authorise or prohibit communication of their works to the public. To address questions 2 and 3 the court looked at the issue of the public to which the content was being communicated and a key logic of Svensson assessed the identity of that public. In this regard, it was noted that placement of content on an open website makes that content freely available to the public at large, regardless of whether that public actually looks at the content. Thus a third party providing a link to that same content does not make the content available to a “new” public, since anyone with access to the internet could have looked at the content in the first place. Accordingly, there is no copyright infringement in providing a link to public content.

Thus, taking question 3 first, which relates to so-called “deep linking”, it is logical to see that the conclusion of non-infringement is not affected even if the content is presented in such as way as to make the content look as though it appears as part of the site providing the link. The content is still not provided to a “new” public.

The concept of the public was also used to answer question 2; in this regard the court noted that if a website restricts the accessibility of content (e.g. with a pay wall or the like) then linking to that content can make it available to a “new” public. Since the public to whom the copyrighted material is being distributed has now changed, the author has the right to control the communication. Thus it could be copyright infringement to link to (and therefore “communicate”) works that have been placed behind some form of restriction in terms of access.

Perhaps one of the most important points coming out of the decision is the answer to question 4, which decided that member states were not free to give wider protection for internet users. The effect of allowing wider protection to be given would be to partition the market within the EU, which was contrary to the entire reason for having the Infosoc Directive in place in the first place, namely to ensure free movement of goods within the EU.

This case therefore highlights the importance of bearing in mind IP rights when using the WWW so that you can ensure you stay the right side of what is permitted.