Click Here for Svensson linking decision update (without being sued for copyright infringement)

Click Here for Svensson linking decision update (without being sued for copyright infringement)

Nils Svensson v Retriever Sverige AB   - Case C-466/12

Let’s play the word association game.  I say ‘THE INTERNET’.  Odds are you’ll say… ‘LINKING!’?

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Following the decision in the Svensson case, you can be ‘hyperlink happy’ because the CJEU has delivered a sensible judgment that means that, largely, hyperlinks will not have to be licensed where protected works are freely accessible on another site.

What is the Svensson case about?

Press articles written by several Swedish journalists were published on a website freely accessible to the general public. A Swedish company, Retriever Sverige, operating a website providing its clients with clickable hyperlinks to articles published on other websites, included hyperlinks to these press articles without permission.  The CJEU was asked to decide various questions on linking, including whether linking constitutes a ‘communication to the public’.

What did the CJEU decide?

  • Providing clickable links to protected works constitutes ‘making available’ and therefore an act of communication
  • BUT the communication must be directed at a new public (a public not taken into account by the copyright holders at the time the initial communication was authorised) to trigger the protection of Article 3(1) of Directive 2001/29
  • There is no such ‘new public’ in the case of the site operated by Retriever Sverige because the works had already been offered on a freely accessible site
  • It didn’t matter that the internet users who click on the link have the impression that the work is appearing on Retriever Sverige’s site, whereas in fact it comes from the freely accessible site

The position would however be different ie a new public would exist, where hyperlinks operate in a way that circumvented restrictions put in place by the site on which protected works are situated (where access has intentionally been restricted to the site’s subscribers).

Additionally, the concept of communication to the public cannot be construed in different Member States as including a wider range of activities than those referred to in Article 3(1) of that directive, because that would have the effect of creating legislative differences and  legal uncertainty.

What does this mean for businesses operating in sectors that rely heavily on linking?

Content rich businesses where linking is key will be considering whether they now need the protection of more restrictive pay walls.  They may also consider whether there are choices to be made about, in certain limited cases, periodically disrupting access to make things more difficult for linkers, or controlling access through protection software. They might just get more picky as to who has access to their content in the first place. The worry for these businesses will be that their brand may suffer or become diluted if they cannot control access to their content.

Those who are keen to monetise (or continue to monetise) linking, including the use of embedded links to third party content, will be heartened by the decision.  SMEs, in particular will benefit from being able to link to material that is ‘freely available’.  This is likely to boost web presence, enable them to reach higher search engine rankings and attract a higher quality of visitor: all these things are important for businesses but perhaps for SMEs in particular. These companies will still have to ensure they do not breach copyright in the way they link, in a Meltwater sense or other intellectual property rights involving misrepresentation or confusion.

What is next?

There is likely to be further clarification sought on what ‘freely accessible/available on another website’ and ‘new public’ actually mean.

Technological developments mean that hyperlinking as a mechanism is set to become increasingly more sophisticated and as such this is not the last we have seen of linking cases in the CJEU and UK courts.  Decision in cases such as Bestwater International C-348/13 on embedding, within one's own website, another person's work made available to the public on a third-party website, and C More Entertainment Case C-279/13, will be keenly awaited to provide the ‘missing link(s)’ in this area.

Joshy Thomas, solicitor in the Lexis®PSL IP & IT team.

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