By Bogdan

On 21 February 2014, the European Court of Justice (ECJ) ruled that a
website could not be found to have infringed copyright for merely
linking to content hosted elsewhere.

The advice was given for the Svea hovrätt (Svea Court of Appeal,
Sweden), in a case involving local journalists and aggregation Swedish
company Retriever Sverige, a media monitor that aggregates content from
the television, magazines and websites.

Retriever Sverige provides clickable internet links (hyperlinks) to
articles published on other websites, including that of Göteborgs-Posten
where press articles written by several Swedish journalists were
published, on a freely accessible basis. Retriever Sverige did not ask
authorisation from the journalists in question who complained and asked
for compensation. The Svea Court of Appeal addressed ECJ for advice on
whether the provision of such links constitutes an act of communication
to the public within the meaning of EU law.

ECJ stated that widely available content can be used by other websites,
even when they are aggregators. The 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, even if the internet users who click on the link have the
impression that the work is appearing on the site that contains the link.

ECJ also added this would not be valid if the original party had
measures to restrict access to their own subscribers, for media sources
with paywalls.

The court also holds that the provision of clickable links to protected
works constitutes an act of communication which is defined as the making
available of a work to the public in such a way that members of the
public may access. Moreover, Retriever Sverige’ s potential users can be
regarded as a public, since their number is indeterminate and fairly large.

Yet, the Court emphasizes that the communication must be directed at a
new public (public not taken into account by the copyright holders at
the time the initial communication was authorised). In the case of the
site operated by Retriever Sverige, according to the Court, there is no
such “new public”, as the works offered on the site of the Göteborgs –
Posten were freely accessible and therefore, the users of Retriever
Sverige’s site must be considered to be part of the public already taken
into account by the journalists at the time the publication of the
articles on the Göteborgs-Posten was authorised.

The Court also stated that the Member States did not have the right to
give wider protection to  copyright holders by broadening the concept of
“communication to the public” which would create legislative differences
and, implicitly, legal uncertainty.

Court of Justice of the European Union PRESS RELEASE No 2/14
(13.02.2014)
http://curia.europa.eu/jcms/upload/docs/application/pdf/2014-02/cp140020en.pdf

Website links to free content don’t infringe copyright, rules ECJ
(14.02.2014)
http://www.theinquirer.net/inquirer/news/2328986/website-links-to-free-content-dont-infringe-copyright-rules-ecj

Early thoughts on Svensson: communication/making available, ‘new’
public, altering the scope of exclusive rights (13.02.2014)
http://ipkitten.blogspot.co.uk/2014/02/early-thoughts-on-svensson.html

Post-Svensson Stress Disorder #1: Does it matter whether linked content
is lawful? (21.02.2014)
http://ipkitten.blogspot.co.uk/2014/02/post-svensson-stress-disorder-1-does-it.html

Judgement of the court (13.02.2014)
http://curia.europa.eu/juris/document/document.jsf?text=&docid=147847&pageIndex=0&doclang=en&mode=req&dir=&occ=first&part=1&cid=60713

The Court of Justice on Links: It is Allowed to Link. At Least In
Principle. (14.02.2014)
http://kluwercopyrightblog.com/2014/02/14/the-court-of-justice-on-links-it-is-allowed-to-link-at-least-in-principle/