This article was produced by Olswang LLP, which joined with CMS on 1 May 2017.
The much-anticipated decision of the CJEU in Svensson (Case number C-466/12 Nils Svensson and Others v Retriever Sverige AB) was published today (13 February 2014), setting out when it might be an infringement of copyright to provide clickable links to other copyrighted content on the internet. The facts centred around the claim by some Swedish journalists for damages against a company which provided links to articles which they had written which were available on the website of the newspaper that had published the articles.
The core answers to the referring court's questions are as follows:
- 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, must be interpreted as meaning that the provision on a website of clickable links to works freely available on another website does not constitute an 'act of communication to the public', as referred to in that provision.
- Article 3(1) of Directive 2001/29/EC must be interpreted as precluding a Member State from giving wider protection to copyright holders by laying down that the content of communication to the public includes a wider range of activities than those referred to in that position.
The court holds that, while a link is an act of making available, where a work is already accessible on the open internet, then that act of making available does not require the consent of rights holders because it is not a new public. Only when the person providing the link is making it available to those who were not previously able to access the content does it constitute a new public.
The Court goes on to give an example of when a new public would be involved: "… where a clickable link makes it possible for users of the site on which that link appears to circumvent restrictions put in place by the site on which the protected work appears in order to restrict public access to that work to the latter site's subscribers only, and the link accordingly constitutes an intervention without which those users would not be able to access the works transmitted, all those users must be deemed to be a new public, which was not taken into account by the copyright holders when they authorised the initial communication, and accordingly the holders' authorisation is required for such a communication to the public. This is the case, in particular, where the work is no longer available to the public on the site on which it was initially communicated or where it is henceforth available on that site only to a restricted public, while being accessible on another Internet site without the copyright holders' authorisation."
The final sentence of this quote appears to relate to an example where a work was lawfully published on a website, but subsequently removed and means that a link to a cached copy of such website would still constitute a communication to the public. However, it is not entirely clear.
The Court also has something to say about embedding and framing: "Such a finding [i.e. the finding that there is no communication to the public in the circumstances described above] cannot be called in question were the referring court to find, although this is not clear from the documents before the Court, that when Internet users click on the link at issue, the work appears in such a way as to give the impression that it is appearing on the site on which that link is found, whereas in fact that work comes from another site.
This appears to be saying that, even if something is embedded, it is still not being communicated to a new public - although clearly that leaves open the possibility of other claims such as passing off or unfair competition, where an embedded link is held out as being associated with the linking site.
Implications
- For those involved in the fight against piracy, this will provide an opportunity for pirates to revisit some of the most recent decisions where those providing "search results" for linking sites were found to infringe copyright. FAPLs successful action to ensure ISPs block access to streaming site First Row Sports in 2013 is one example where First Row Sports was held to infringe by providing links to infringing content and which, should a similar case be brought in the future, would require a re-evaluation of Mr Justice Arnold's decision in the light of Svensson. It will be interesting to note also, how this affects action taken to block aggregator sites, and whether their intention and organisation of hyperlinks means that they can be distinguished from the current case.
- The inclusion of hyperlinks can be contrasted with the outcome of ITV v TVCatchUp - which last year decided that, where there was a technical intervention to transpose a communication to a new medium (i.e. take a terrestrial broadcast and turn it into a stream), that did constitute a communication to the public. Indeed in Svensson, the Court expressly emphasised that it is only "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." Where there is a change in technical means, the new public issue does not arise.
- The court has left open the issue about the effectiveness of geoblocking technology - by implication, if a link of itself were enough to circumvent geoblocking technology (which seems a relatively unlikely scenario) then it is unclear whether providing such a link would be making the content available to a new public. However, given the decision in SportRadar that a communication to the public is a restricted act in (at least) the country of destination, then there must be good grounds to argue that there is a new public in this scenario.
