ECJ states that linking to freely available content is not copyright infringement

by Béatrice Martinet Farano

On 13 February, 2014 the European Court of Justice (ECJ) issued its most awaited decision in Svensson (case C-446/12) bringing some welcomed resolution on the issue of linking.

In this case, four Swedish journalists had launched a copyright infringement suit against the operator of a website, Retriver Sverige, whose website provided hyperlinks to news articles that they had published online (specifically, on freely available newspapers).

While the Stockholm District Court had merely dismissed their action, the Svea Court of Appeal referred the issue to the European Court of Justice, asking, specifically:

(1) Whether providing “clickable links” to a work should be considered tantamount to “making [it] available” and therefore an “act of communication” to the public in the sense of the Copyright Directive,

(2) Whether the fact that the content linked to was freely available to the public (or, conversely, is access-restricted) should have any impact on the answer to question 1,

(3) Whether the fact that it was not apparent to the user that the content was hosted on a third party website should have any impact on question 1, and

(4) Whether Member State could give wider protection to authors’ exclusive rights by extending the scope of their “communication to the public” rights.

As to the first question, i.e. the question as to whether linking was to be considered as an act of communication to the public, the Court first observed that the provision of clickable links to protected works was tantamount to making them available, since it effectively enable users to “access” such content. The Court therefore concluded that linking should be considered an “act of communication” in the meaning of the Directive.

As to the second question however, the Court held that for such act of communication to be infringing it had to be communicated to a new public, that is to say, to a public that was not taken into account when the copyright holder authorized the first communication to the public. In this case, because the work had been made freely available to all internet users in the first place, the ECJ held that this communication should not be considered infringing since it targeted the same public, i.e. potentially all internet users.

Alluding to the third question, the Court also made clear that the circumstances that it was not apparent that such content was actually hosted on a third party’s website should not have any impact on this conclusion.

The Court finally addressed the fourth question and expectedly held that, in keeping with the rationale and objectives of harmonization and legal certainty of the InfoSoc/Copyright Directive, Member States should not be authorized to restrict, nor broaden the scope of any exclusive rights, including the right of communication to the public.

No doubt that this decision will be welcomed with enthusiasm by news aggregators, social media and bloggers around the world.

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