European ruling avoids breaking the Internet, protects linking in websites

Mark Leiser: I am a PhD Candidate in Cyber Law at the University of Strathclyde in Glasgow. I have written submissions for the Leveson Inquiry into the culture and ethics of the media and for the Scottish Parliament on the use of social media during trials. My PhD is supervised by Professor Andrew Murray at the London School of Economics and focuses on the effectiveness of cyber-regulation. My research and interests revolve around main areas of Internet law and policy including internet governance & regulation, democracy, social media, privacy, and intellectual property. My PhD research focuses on developing a system of modelling to measure the effectiveness and legitimacy of Internet Regulation. I write in a personal capacity.

It is simplistic in its reasoning. It is practical in its application, but the Court of Justice of the European Union (CJEU) released last week its ruling over whether the owner of a website may, without the authorisation of copyright holders redirect internet users via hyperlinks to protected works available on a freely accessible basis on another site. The Svennson case (Case C‑466/12) will be one of those cases that end up in the text book, not just for its importance on copyright, but how the court got to its decision.

This decision may provide some comfort to websites who share others' content through the provision of hyperlinks, however it by no means gives them carte blanche to link to any online content.

The key element of the decision is that the links were provided to works which were already publicly available to all Internet users. Where the content linked to is not freely available elsewhere, for example it is on a site requiring a subscription, the linking website would likely be found to be communicating the work to a new public and therefore liable for copyright infringement.

Other implications of the work will need to be tested in future cases.

For example: Where a website is freely accessible but its contractual terms and conditions prohibit use for certain purposes (eg newspaper website's terms and conditions typically prohibit 'commercial use'), would a hyperlink sent to organisations encourage a prohibited use constitute a communication to a 'new public' (because commercial users were not 'taken into account' by the rights holder)?

The Court's finding that once a work is made freely available online it is available to all Internet users could have implications for links to infringing content. Where the infringing content (such as an unauthorised reproduction of a work) is also freely accessible online in its original (authorised) form there is an argument following Svensson that providing a link to such content is not a communication to a new public. This situation could then change if the original work is subsequently taken down or made subject to access restrictions such that there is no longer any authorised initial communication to the public.

Background to Svennson

Journalists wrote articles published in a Swedish newspaper called the Göteborgs-Posten newspaper and on the Göteborgs-Posten website. Another company named Sverige operated a website that provides to its clients (based on a selection of interests) a list of Internet hyperlinks which when clicked would take the user to articles published by other websites. Both parties agreed that these articles were accessible on the Göteborgs-Posten newspaper site. However, when one party clicks on one of those links, it is not apparent to the user that they had been redirected to another site in order to access the work in which he is interested. By contrast, when someone clicks the Sverige link, it is obvious that he is redirected to another site.

Similar to news aggregation cases like Meltwater v Newspaper Licsensing Agency, where the Meltwater group of companies provides members of the association with automated software programmes to create a daily index of words appearing on newspaper websites. Meltwater’s customers supply them with search terms, and Meltwater produces a monitoring report listing the results. Meltwater sends the monitoring report to the customer by email, but the customer can also access it through Meltwater’s website.

In Meltwater, the court had to decide whether Meltwater’s customers needed licenses in order to receive its service if a monitoring report is made available only on Meltwater’s website. In Svennson, the applicants in the main proceedings brought an unsuccessful action against Sverige before the Stockholm District Court, seeking compensation on the ground that that company had made use, without their authorisation, of certain articles by them, by making them available to its client. Scuppering judgement, the Appeals Court referred the judgement to the CJEU asking, inter alia whether someone who provides a link to a copyrighted work amounts to “communication to the public” within the meaning of Article 3(1) of the InfoSoc Directive. Secondly, what happens when clicking a link takes you beneath or around a paywall? Thirdly, does it matter whether content appears integrated into the website, or whether the copyrighted content appears in a way to give an impression that it is appearing on the same website? Finally, is it possible for Member States to give even wider protection to the rights of an author by interpreting “communication to the public” than was intended in Article 3(1) of the InfoSoc Directive.

It considered that the first three questions were basically seeking clarification as to 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.

Here is the interesting bit. A 'communication to the public' requires both an 'act of communication' and a 'public'. In its judgment, the CJEU held that: (i) the mere provision of hyperlinks to copyright protected works does constitute an act of communication as the links must be considered to be making the works available; and (ii) the (freely available) website was aimed at an indeterminate and large number of people sufficient to constitute a 'public'.

However, the Court also referred to case-law and noted at paragraph 24 that "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 holders when they authorised the initial communication to the public."

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