In the eagerly awaited decision in Nils Svensson, Sten Sjögren, Madelaine Sahlman and Pia Gadd v Retriever Sverige AB (2014) the CJEU sets out that a website owner may redirect internet users, via hyperlinks, to copyright protected works which are freely accessible on another website, without the authorisation of the copyright holder.
This case concerned a number of press articles that were published in the Göteborgs-Posten newspaper and on its website. The Defendant, Retriever Sverige, operated a website that provides lists of hyperlinks to articles published on the Göteborgs-Posten website and other news websites where the articles are freely available to the public. A number of journalists for Göteborgs-Posten brought proceedings against Retriever Sverige for copyright infringement.
In September 2012, the Swedish Court of Appeal referred four questions to the CJEU:
- If anyone other than the copyright owner supplies a clickable link to the work on his website, does that constitute a communication to the public within the meaning of Article 3(1) of Directive 2001/29?
- Is the assessment under question 1 affected if the work to which the link refers is on a website which can be accessed by anyone without restrictions or if access is restricted?
- In relation to 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 user is under the impression that the work is appearing on the same website?
- Can a Member State give wider protection to authors' exclusive right by enabling "communication to the public" to cover a greater range of acts than in Article 3(1)?
The CJEU held that (i) the provision of hyperlinks to copyright protect works does constitute a communication as the links are making the works available to the public and (ii) the freely available website was targeted at all potential internet users as the website was not subject to any restriction (e.g. as a paywall). The Court noted from case law that for infringement to occur "a communication...concerning the same works as those covered by the initial communication and made... by the same technical means, must also be directed at a new public, that is to say, at a public not taken into account by the copyright holder when they authorised the initial communication to the public."
In this case, the links did not make the articles available to a new public (it was already available to all internet users) and therefore there was no requirement to obtain the copyright holder's consent.
In relation to the fourth question, the CJEU concluded that Article 3(1) cannot be interpreted as allowing Member States to give wider protection to copyright holders by including a wider range of acts in the meaning of 'communication to the public', as the functioning of the internal market would be adversely affected. It stated that granting the Member States such power would have the effect of creating legislative differences and legal uncertainty.
The decision provides comfort to website owners who have created hyperlinks to copyright works, provided that such copyright works are freely available to all internet users in the first instance.
Consistent with our policy when giving comment and advice on a non-specific basis, we cannot assume legal responsibility for the accuracy of any particular statement. In the case of specific problems we recommend that professional advice be sought.