Case C-466/12 Svensson – CJEU saves the Internet

by Pedro Malaquias

On 13 February 2014, the Court of Justice of the European Union (CJEU) issued its strongly expected decision in Svenson (Case C‑466/12 Svensson and Others v Retriever Sverige AB), in which it dealt with one of the most pressing topics in European copyright law: hyperlinking (the CJEU Press Release can be read here; for the full judgement, visit the Curia’s website). Briefly, the Court held that “[t]he owner of a website may, without the authorisation of the copyright holders, redirect internet users, via hyperlinks, to protected works available on a freely accessible basis on another site“.

The main facts of the underlining case seem to be simple. Press articles written by Swedish journalists were published on a freely accessible basis on Göteborgs-Posten newspaper’s website. Retriever Sverige, the defendant in the main proceedings, operates a website that provides to its clients hyperlinks to articles published on other websites, including the ones on Göteborgs-Posten. The applicants in the main proceedings – Nils Svensson, Sten Sjögren, Madelaine Sahlman and Pia Gadd – brought an action against Retriever Sverige before the Stockholm District Court claiming that the company had infringed their exclusive right to make their respective works available to the public, in that as a result of the services offered on its website. In defence, Retriever Sverige argued that the provision of lists of Internet links to works communicated to the public on other websites does not constitute an act liable to affect the copyright in those works and that it did not carry out any transmission of any protected work.

On 11 June 2010, the Stockholm District Court rejected the journalists’ application. The applicants in the main proceedings appealed such decision to the Svea Court of Appeal. On 18 October 2012, the Svea Court of Appeal lodged a a reference for a preliminary ruling,
asking the following:

  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?

On a very short judgement (solely 42 paragraphs), and without seeking the opinion from one of the Advocates General, the court provided its answers. Although the CJEU dealt together with the first three questions, this writer find it logical (and easier) to analyse them separately. In relation to the first of the questions, the Court clarified that, under article 3(1) of the InfoSoc Directive, every act of communication of a work to the public has to be authorised by the copyright holder. Elaborating on this matter and by reference to Case C‑607/11 ITV Broadcasting and Others, the Court said that the concept of ‘communication to the public’ includes two essential requisites: that there is (1) an act of communication and (2) that such communication is made to a public. As it results from Joined Cases C‑403/08 and C‑429/08 Football Association Premier League and Others, the existence of an ‘act of communication’ must be construed broadly. As a result, and interpreting the circumstances of the case, the Court (not surprisingly) held that ‘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‘ (para. 20). As for the second of the requisites, the Court found that it was not fulfilled in the present case. At this purpose, the Court started by reaffirming its prior decisions (on Case C‑306/05 SGAE and Case C‑607/11 ITV Broadcasting and Others) that ‘public’ for the purposes of article 3(1) InfoSoc should be interpreted as an indeterminate number of potential recipients and implied a fairly large number of persons, something that easily occurred through linking in an online environment. The most relevant part of this judgement is, however, found in paragraphs 24 to 28. In such paragraphs, the Court recalls its decisions on SGAE, ITV Broadcasting and in Case C‑136/09 Organismos Sillogikis Diacheirisis
Dimiourgon Theatrikon kai Optikoakoustikon Ergon and the importance of the existence of a new public:

[A]ccording 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
” (Paragraph 24)

As in the present case, the works on the Göteborgs-Posten were published on a freely basis and were accessible to the general public, there was no communication to a new public and, consequently, no (new) authorisations from the copyright holders were required. As for thesecond question (does it make a difference if the link allows to circumvent restrictions put in place by the site owner?), the CJEU, in Paragraphs 31, held that such would indeed result in a different situation. In fact, the provision of links which would bypass any paywall or similar systems would result in communication of the work to a public that was not taken into account by the copyright holder when it authorised the initial communication and, as such, authorisation was required.

The third question(does it make a difference if the work is shown in a way as to give the impression that it is appearing in the new website?) was specially interesting as, in the underlining case, it was controversial if it was apparent to Retriever’s clients that by clicking in the links they were being redirected to other website. In Paragraphs 29 and 39, the Court held that such was irrelevant as, independently of the circumstances, the public to which the work was being communicated would not change and, therefore, according to the answer provided to question 1, one could not understand this to be making available to a new public. This answer will certainly have ramifications in the pending decisions of Cases C-279/13 C More Entertainment and C-348/13 BestWater, in which different types of link are going to be analysed.

Finally, in relation to the fourth question (can a Member State provide 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 Article 3(1) of the InfoSoc Directive?), the CJEU excluded the possibility of a wider protection. By reference to Recitals 1, 6 and 7 in the preamble to the InfoSoc Directive, the Court recalled the directives’ objectives of reducing the “legislative differences and legal uncertainty that exist in relation to copyright protection“, something that would be undermined by accepting that Member States could provide wider protection to copyright holders by laying down that the concept of communication to the public also includes activities other than those referred to in the applicable directive provision. At this point, the Court referred to its decision on Case C‑277/10 Luksan. The decision of the court seems to be a very balanced one. Rightholders’ protection is guaranteed by the answer given in relation to the second question. At the same time, it is assured that the way that the Internet works is not disrupted as a result of copyright laws. However, it should be noted that this decision does not clarify all doubts in relation to hyperlinking:

  • Sooner or later, the Court will certainly have to clarify if a different answer is to be given if the link directs a user to infringing content. Would such result in a communication to the public of such a content? Or, instead, the same rationale should be applied and communication to the public only occurs with the first upload? Could secondary / indirect infringement theories be used in such situations?
  • What should be understood by “circumvent restrictions”? What does a website manager need to do to restrict access to a website?
  • Do the terms and conditions of a website play in role in all of this?
  • Framing and embedding do not seem to assume any additional relevance in relation to communications to the public. However, to what extent (if any) can unfair competition/passing off and/or consumer laws be used to prevent some excesses?

  Pedro Malaquias is a Portuguese Qualified lawyer. Currently, he is a LL.M. candidate at Queen Mary, University of London and works as a Student Research Fellow at Queen Mary Intellectual Property Research Institute (QMIPRI) and as Assistant Editor at Queen Mary Journal of Intellectual Property (QMJIP). @PedroMMalaquias