In a judgment on February 13, the Court addressed four questions referred from Sweden on the interpretation of Article 3(1) of the Copyright Directive (which concerns the right of authors to “authorise or prohibit any communication to the public of their works”).
The dispute was between four journalists (Svensson, Sjögren, Sahlman and Gadd) and a website (Retriever Sverige) that provided hyperlinks redirecting users to newspapers hosting articles in which the journalists owned the copyright.
The articles were freely accessible on the newspaper sites.
The Court said that providing clickable links must be considered to be “making available” and therefore an “act of communication” to the public.
But it added that to be covered by the concept of communication to the public, the communication must be to a new public – in other words “a public that was not taken into account by the copyright holders when they authorised the initial communication to the public”.
That was not the situation in this case: “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.”
That finding would be the same even where “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”.
However, the Court said the situation is different if the hyperlink provides access to restricted content (for example articles only available to paying subscribers). In that case, the users would be deemed to be a “new public” which was not taken into account by the copyright holders when they authorised the initial communication.
The Court also said that Article 3(1) precludes a member state “from giving wider protection to copyright holders by laying down that the concept of communication to the public includes a wider range of activities than those referred to in that provision”.
To do so, it said, would undermine the objectives of the Directive, namely to remedy legislative differences and promote legal certainty.
The case raised fundamental issues relating to internet use and freedom as well as copyright protection.
Last year, a group of copyright academics, the European Copyright Society, urged the Court to answer the questions referred in the negative: “If hyperlinking is regarded as communication to the public, all hyperlinks would need to be expressly licensed. In our view, that proposition is absurd.”
But some copyright owners feared that giving a green light to hyperlinking would make it more difficult to combat internet piracy.
The Court’s clear decision will probably be welcomed by most observers, though questions may remain about what constitutes a “new public” and what exactly would be covered by “restricted content”.
Managing IP has compiled a Storify page including some of the immediate reaction to the decision on twitter.