CJEU Svensson Decision
Internet Hyperlinks and Copyright
The CJEU has ruled that providing a clickable link to a copyright protected work on a website is not an infringement of the copyright in that protected work if it is published and freely accessible on another site.
In the case Svensson v Retriever Sverige, Retriever Sverige were operators of a website that provided its clients with lists of clickable Internet links to articles published by other websites. The applicants (all journalists) wrote press articles that were published in the Göteborgs-Posten newspaper and on the Göteborgs-Posten website. They brought an action against Retriever Sverige for compensation on the ground that it had used their articles without authorisation by making them available to its clients. Both parties agreed that the original articles were freely accessible on the Göteborgs-Posten newspaper site. When the case reached the Svea Court of Appeal in Sweden, the court decided to stay the proceedings and refer questions to the European Court of Justice (CJEU) for a preliminary ruling
What the CJEU ruled
The first three questions centred on whether the InfoSoc Directive (Directive 2001/29) must be interpreted as meaning that providing clickable links on a website to protected works available on another website constituted an “act of communication to the public”, where, on that other site, the works concerned are freely accessible.
The CJEU ruled that although Retriever Sverige’s provision of clickable links to protected work was making a communication to a public, it is settled case law that in order to be covered by the concept of “communication to the public” a communication concerning: (a) the same work and (b) communicated by the same technical means (in this case, the Internet) must also be directed at a new public. A new public means a public that was not taken into account by the copyright holders when they authorised the initial communication to the public. The copyright works in question were available to any Internet user via the Göteborgs-Posten newspaper site, so any links to it did not constitute a “new public”.
What this means for you
If a copyright holder publishes their work on the Internet and makes it freely available to all Internet users, you do not need the permission of the copyright holder to provide a link to that work on your own website. This remains the case even if the work appears in such a way as to give the impression that it is appearing on your site, when in fact that work comes from another site.
Words of caution
If a clickable link enables Internet users to get round restrictions put in place by the site on which the copyright work appears (such as only allowing access to subscribers or account holders of that site), those users will be deemed to be a “new public”. Providing such a clickable link will infringe the copyright of the work unless you have the copyright holder’s authorisation.
In particular, be careful about links to work where the work is no longer available to the public on the initial site or where it later becomes available on the site only to a restricted public. If it remains accessible on your site without the copyright holders’ authorisation, this would be infringing the copyright in the work.
What about copyright in headlines in hyperlinks themselves?
The issue of whether headlines themselves can attract copyright protection has been the centre of the ongoing dispute between the Newspaper Licensing Agency and Meltwater. The Court of Appeal affirmed the trial judge’s finding “that newspaper headlines are capable of being original literary works” as “plainly correct” and “unassailable”. It described a headline as “plainly” a literary work as “it consists of words”. It therefore followed that the use of headlines and extracts alone could be infringing. This case was appealed to the Supreme Court (who did not deal with copyright subsistence in headline) who referred questions to the CJEU regarding temporary reproductions. Until we have the final decision the position on hyperlinks seems unclear; even though hyperlinks are free to use, if they include a headline there is still a risk of copyright infringement.
If you would like further advice on this or any other IP litigation matter, please email Kristina Passmore or your usual HGF representative or visit our Contact Page to get in touch with your nearest HGF office.