The Court of Justice of the European Union has reached a decision in the latest case dealing with questions about whether linking to content amounts to a communication to the public, and therefore unauthorised linking could be pursued as copyright infringement. The case is Svensson and Others v Retriever Sverige AB Case C‑466/12, where a group of journalists writing for the the Göteborgs-Posten newspaper’s website sued Retriever Sverige, a commercial indexing service which provides its clients with links to articles published by other websites. The claimants argued that this practice amounts to infringement as it is not clear to the clients that they are being directed to a site hosting content in another website, while the defendants claimed that their clients knew that the content was hosted elsewhere. The case was decided in favour of the defendants by a Swedish court in 2010, and it was later appealed and the second court referred it to the CJEU with the following questions:
“(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]?
(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?”
This case is very important because it may finally settle the question of whether linking amounts to a communication to the public, which has been discussed in several courts around Europe in the last few years. Readers from other jurisdictions might be justified in wondering precisely why this is still a legal question in 2014, when many of us thought that the issue of linking to content had been settled back in the 90s. The reason why this is still being discussed in Europe, and not in other countries such as the US, is that European law does not have a limitation of liability for intermediaries with regards to linking. In 1997 the DMCA enacted a system of safe harbours for intermediaries which allowed them to have limited immunity for things like hosting, caching and transfer of content; all of these also exist in the European equivalent created by Arts 12-14 of the E-commerce Directive. The main difference between the DMCA and the European regime is that the former offers immunity to information location tools, in other words, it offers immunity to search engines for linking to content if they comply with notice and take-down procedures, which is the main reason why you often get results taken out of Google (search for “Game of Thrones torrent” and you will see what I mean). This served to settle the question of linking in the US, but as there is no equivalent in Europe, then the courts had to decide whether linking to infringing content would in itself be a communication to the public.
Fast forward some years, and we are now witnessing a resurgence of cases where the question of linking is coming up again. These are being initiated by newspapers against aggregators and other similar services, in other words, businesses that are struggling economically want to get new media to pay for their failing business models, hence the attack against intermediaries for linking.
In Svensson, the CJEU had to decide whether a service that links to content without authorisation is communicating the work to the public. The issue then was incredibly important, imagine a world in which only the copyright owner can provide a valid link to content, this would cripple the Internet as we know it, as people would be afraid to link to content without authorisation. The CJEU recognised the relevance of the legal question, and thankfully was able to come to the right conclusion, namely that the content is being offered already by the rightsholder online, and that the purpose of the network is precisely to share and link information. Because the content has been made available to the Internet public already, any further link to the content should not be considered as a new communication to the public, but a continuation of the initial posting. The decision states:
“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.”
Therefore, the Court ruled 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.”
The CJEU then went to answer the fourth question, which was asking whether Member States can provide a wider level of protection than that which is contained in the Copyright Directive, and here the answer was negative, as it was felt that it would undermine the harmonising spirit of the Directive.
Concluding, this is an excellent decision by the CJEU, it produced a concise and logical ruling that takes into account the realities of the Web. However, the ruling in Svensson does not answer directly the question of whether linking to content that has not been made available to the public by the owner would be considered as a communication to the public. The ruling hints strongly that this would be infringement, but it will be interesting to see if this is referred to in future cases. For now we can rest assured in the knowledge that the most sane decision was reached.
For the avoidance of doubt, yes, you can link freely to this article.