On 13 February, 2014, the Court of Justice of the European Union (hereinafter the "Court") rendered an important judgment in the area of copyright infringement as to the scope of legitimate hyper linking. The ruling: Hyper linking to protected works that are already freely accessible on another website does not constitute copyright infringement by the hyper linking party because the works are not made available to a new public. This decision and its ramifications are discussed in detail below.
Hyper linking is an integral part of most websites and allow a website to incorporate vast amounts of information from other sites. The question must arise as to when such hyper linking…which, in effect, brings someone else’s work onto your own website…is infringement. The Court has ruled that it does not.
Further, the Court ruled that it is irrelevant in this respect if the hyper linking party gives the impression that the work is appearing on its own website when the work in fact comes from another website. The case at hand is Svensson et al./Retriever Sverige and is the most recent in the following line of judgments: SGAE, Football Association Premier League and ITV Broadcasting.
Hyperlinks are very common in today's online world. A hyperlink gives the user of a site access to additional content by clicking on the link. This access is either direct – clicking on the link causes the user to be redirected to another website – or indirect through the intervention of the hyper linking party, called embedded linking. In the case of embedded linking, the additional third-party content is presented within the hyper linking website.
In the present case, Retriever Sverige's website provided the visitor with clickable links to press articles written by journalists Svensson et al. and published on, inter alia, the Göteborgs-Posten website, where the articles were freely accessible.
Hyper linking to third-party content without the copyright owner's consent constitutes copyright infringement if the content is a protected work and the hyper linking is considered to be an 'act of communication' of a work 'to the public' within the meaning of Article 3(1) of the Copyright Directive (Directive 2001/29 /EC of the European Parliament and of the Council of 22 May 2001 on the harmonization of certain aspects of copyright and related rights in the information society). However, a communication made by the same technical means as the initial communication authorized by the copyright owner will not be considered a communication 'to the public' unless it is directed to a new public, i.e. a public that was not taken into account by the copyright owner when authorizing the initial communication to the public. That is the key test.
Act of communication?
It follows from previous case law of the Court – Football Association Premier League (cases C-403/08 and C-429/08) and SGAE (case C-306/05) – that the term 'act of communication' must be construed broadly. For there to be such an act, it is sufficient that a work is made available to a public in such a way that persons forming that public may access it, irrespective of whether they avail themselves of that opportunity.
In the Svensson case, the Court held that the provision by Retriever Sverige of clickable links to protected works must be regarded as the 'making available' of content and, therefore, as an 'act of communication'.
Act of communication to the public?
The Court then cited previous cases in which it had considered whether a protected work was in fact being communicated to a 'public'. In SGAE and ITV Broadcasting (case C-607/11) the Court held that the term 'public' refers to an indeterminate number of potential recipients of the content and implies a fairly large number of persons.
Because the links provided by Retriever Sverige were aimed at all potential visitors of the site, and therefore at an indeterminate and fairly large number of recipients, the Court held that Retriever Sverige was making a communication to a public.
According to settled case law, inter alia SGAE, because Retriever Sverige's communication was made by the same technical means as the initial communication by the newspaper website, i.e. online, in order for Retriever Sverige's communication to constitute copyright infringement it had to be directed at a new public, i.e. at a public that was not taken into account by the copyright owners when they authorized the initial communication.
In Svensson, the Court observed that the hyper linking did not lead to the works being communicated to a new public, because the public targeted by the initial communication already consisted of all internet users. According to the Court it is irrelevant for this purpose whether it was apparent to visitors of Retriever Sverige's website that the works came from a different site.
On the other hand, where a protected work is no longer available to the public on the website on which it was initially communicated or is accessible on that site only to a restricted public, the users of a hyperlink giving access to that work must be deemed to be a new public.
Hyperlinks have become such an integral part of the internet that the courts are not going to be able to enforce copyright protection on the hundreds of thousands of links that appear on every website daily. The entire concept of a hyperlink is to incorporate already existing information into your own website.
The underlying problem, of course, is that one need not make clear that the hyperlink material derives from an outside source. While perhaps a practical fact that the courts would not be able to enforce such a restriction, it does mean that once you post, you have to assume that in the EU, at least, your material is now available to be used on other websites without attribution to you…so long as the public for that new use is akin to the public for your original publication.