Earlier today, the CJEU released an important decision on whether the making available right gives copyright holders a right to authorize the use of hyperlinks to copyright content. In Case C-466/12 Svensson v Retriever Sverige AB, (13 February 2014) the CJEU ruled that an ordinary “clickable” hyperlink makes a work available to the public. However, if the link is to a publically available portion of a website used by the rights holder to make work available to the same public as the link, it is not made available to a new public and the right is not infringed.
In summary, the CJEU made the following findings:
- A work that is posted on a website is communicated to the public by virtue of its being made available to the public.
- An ordinary clickable hyperlink to a work can make it available to the public, whether the work is accessed through the link or not.
- Whether a link makes a work available to the to the public depends on a number of factors. It must be made available to the same public as the public for the work at the location to which it was made freely available by the rights holder. If the work at the original site is protected by a technical measure, has been taken down, is otherwise inaccessible, or if the link otherwise makes the work available to a public other than the public for whom the work is made available at the original site, the link to the file would make it available to the public and would be an infringing act. For example, although not canvassed in the case, a link to an infringing copy of a file on a site not authorized by the copyright holder would likely be made available to a new public and be infringing under the opinion.
- A link that makes available a work in a frame would appear to be assessed using the same principles.
The decision is based on an interpretation of EU Directive 2001/29. Article 3 of the Directive provides:
Member States shall provide authors with the exclusive right to authorise or prohibit any communication to the public of their works, by wire or wireless means, including the making available to the public of their works in such a way that members of the public may access them from a place and at a time individually chosen by them.
This Article transposed into EU law Article 8 of the WIPO Copyright Treaty (WCT). This Article states:
Without prejudice to the provisions of Articles 11(1)(ii), 11bis(1)(i) and (ii), 11ter(1)(ii), 14(1)(ii) and 14bis(1) of the Berne Convention, authors of literary and artistic works shall enjoy the exclusive right of authorizing any communication to the public of their works, by wire or wireless means, including the making available to the public of their works in such a way that members of the public may access these works from a place and at a time individually chosen by them.
The Svensson case[i] was a reference from the Svea Hovrätten (Svea Court of Appeal) in Sweden. The claimants were four journalists who between them had written 13 articles published by the Göteborgs-Posten newspaper. Three of the journalists were employed by the newspaper, while one was freelance. All of the articles had all been published not only in print, but also online on the newspaper’s website. In the case of one of the articles, which was written by the freelance author, the online publication by the newspaper was not licensed by the author. In addition to publishing the articles online on its own website, the newspaper had licensed Mediearkivbolaget to make copies of the articles available from its Mediearkivet database. None of the claimants had licensed this. The defendant Retriever was a member of the same group of companies as Mediearkivbolaget which provided media monitoring and search services. The claimants brought proceedings before the Stockholm District Court claiming that Retriever had infringed their copyrights in the articles.
Retriever provided its services to about 3,000 subscribers. The media monitoring service involved Retriever searching the internet using agreed search words so as to inform the subscriber as to how it had been reported in the media or how specific issues had been handled. The results of the searches were sent by Retriever to the subscriber by an email which included links to relevant articles (that is to say hyperlinks to websites on which the articles were available) together with so-called “link tails” which included a few words from the articles in question. The subscriber could also review the search results by logging onto Retriever’s website. If the subscriber so requested, and paid an additional fee, the search would include a search of the Mediearkivet database.
The search service comprised a search facility on Retriever’s website. The search included a search of the Mediearkivet database. The search result was presented to the subscriber in the form of lists of links. The claimants contended that each of the thirteen articles had been accessed via such links by one of Retriever’s subscribers who had used the search function.
The District Court first considered the claimants’ claim that Retriever had made the articles available in full text by either its media monitoring service or its search service. Retriever denied this, contending that it had only provided links. The District Court rejected this claim on the ground that the claimants had failed to prove that Retriever, rather than Mediearkivbolaget, had made the articles available in full text.
The District Court then considered the claimants’ claim that Retriever had made the articles available to the public by the provision of links in the results of its search service. (This claim did not extend to the media monitoring service.) The District Court noted that this claim depended on the interpretation of the Information Society Directive, but decided not to refer any questions to the CJEU.
The District Court noted that, given the circumstances of the case, there was reason to pose the question whether links to works which are lawfully available on the Internet should be treated differently from a legal perspective than links to works which are unlawfully available on the internet. It could be said that links to the former were subject to an implied licence from the copyright owner, whereas linking to an address on which the work has been unlawfully placed might constitute copyright infringement. The real question, however, according to the District Court, was whether linking amounted to communication to the public at all.
The District Court went on to distinguish between “deep linking”, where the user does not notice that they have been transferred to another website, and “reference linking”, where this is clear to the user. The District Court considered that the preponderant view amongst commentators was that “reference linking” did not constitute communication to the public and shared this view. Since Retriever’s links were reference links, the District Court concluded that there was no communication to the public in the instant case.
The claimants appealed. The claim was only pursued in respect of the claims relating to Retriever’s provision of links, not the claim relating to full text articles. The Svea Court of Appeal referred the following questions to the Court of Justice without expressing any preliminary view as to how they should be answered:
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 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?
The CJEU’s reasons were very short notwithstansing the importance of the decision. The relevant portion of the opinion with respect to the first three questions are set out below.
14 By its first three questions, which it is appropriate to examine together, the referring court asks, in essence, whether Article 3(1) of Directive 2001/29 must be interpreted as meaning that the provision, on a website, of clickable links to protected works available on another website constitutes an act of communication to the public as referred to in that provision, where, on that other site, the works concerned are freely accessible.
15 In this connection, it follows from Article 3(1) of Directive 2001/29 that every act of communication of a work to the public has to be authorised by the copyright holder.
16 It is thus apparent from that provision that the concept of communication to the public includes two cumulative criteria, namely, an ‘act of communication’ of a work and the communication of that work to a ‘public’ (see, to that effect, Case C‑607/11 ITV Broadcasting and Others  ECR, paragraphs 21 and 31).
17 As regards the first of those criteria, that is, the existence of an ‘act of communication’, this must be construed broadly (see, to that effect, Joined Cases C‑403/08 and C‑429/08 Football Association Premier League and Others  ECR I‑9083, paragraph 193), in order to ensure, in accordance with, inter alia, recitals 4 and 9 in the preamble to Directive 2001/29, a high level of protection for copyright holders.
18 In the circumstances of this case, it must be observed that the provision, on a website, of clickable links to protected works published without any access restrictions on another site, affords users of the first site direct access to those works.
19 As is apparent from Article 3(1) of Directive 2001/29, for there to be an ‘act of communication’, it is sufficient, in particular, that a work is made available to a public in such a way that the persons forming that public may access it, irrespective of whether they avail themselves of that opportunity (see, by analogy, Case C‑306/05 SGAE  ECR I‑11519, paragraph 43).
20 It follows that, in circumstances such as those in the case in the main proceedings, the provision of clickable links to protected works must be considered to be ‘making available’ and, therefore, an ‘act of communication’, within the meaning of that provision.
21 So far as concerns the second of the abovementioned criteria, that is, that the protected work must in fact be communicated to a ‘public’, it follows from Article 3(1) of Directive 2001/29 that, by the term ‘public’, that provision refers to an indeterminate number of potential recipients and implies, moreover, a fairly large number of persons (SGAE, paragraphs 37 and 38, and ITV Broadcasting and Others, paragraph 32).
22 An act of communication such as that made by the manager of a website by means of clickable links is aimed at all potential users of the site managed by that person, that is to say, an indeterminate and fairly large number of recipients.
23 In those circumstances, it must be held that the manager is making a communication to a public.
24 None the less, according to settled case-law, in order to be covered by the concept of ‘communication to the public’, within the meaning of Article 3(1) of Directive 2001/29, a communication, such as that at issue in the main proceedings, concerning the same works as those covered by the initial communication and made, as in the case of the initial communication, on the Internet, and therefore by the same technical means, must also be directed at a new public, that is to say, at a public that was not taken into account by the copyright holders when they authorised the initial communication to the public (see, by analogy, SGAE, paragraphs 40 and 42; order of 18 March 2010 in Case C‑136/09 Organismos Sillogikis Diacheirisis Dimiourgon Theatrikon kai Optikoakoustikon Ergon, paragraph 38; and ITV Broadcasting and Others, paragraph 39).
25 In the circumstances of this case, it must be observed that making available the works concerned by means of a clickable link, such as that in the main proceedings, does not lead to the works in question being communicated to a new public.
26 The public targeted by the initial communication consisted of all potential visitors to the site concerned, since, given that access to the works on that site was not subject to any restrictive measures, all Internet users could therefore have free access to them.
27 In those circumstances, it must be held that, where all the users of another site to whom the works at issue have been communicated by means of a clickable link could access those works directly on the site on which they were initially communicated, without the involvement of the manager of that other site, the users of the site managed by the latter must be deemed to be potential recipients of the initial communication and, therefore, as being part of the public taken into account by the copyright holders when they authorised the initial communication.
28 Therefore, since there is no new public, the authorisation of the copyright holders is not required for a communication to the public such as that in the main proceedings.
29 Such a finding 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.
30 That additional circumstance in no way alters the conclusion that the provision on a site of a clickable link to a protected work published and freely accessible on another site has the effect of making that work available to users of the first site and that it therefore constitutes a communication to the public. However, since there is no new public, the authorisation of the copyright holders is in any event not required for such a communication to the public.
31 On the other hand, 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.
32 In those circumstances, the answer to the first three questions referred is that Article 3(1) of Directive 2001/29 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.
[i] This summary of the case is based substantially on the description given by Justice Arnold in Paramount Home Entertainment International Ltd & Ors v British Sky Broadcasting Ltd & Ors  EWHC 3479 (Ch) (13 November 2013).