Copyright: Hyperlinking And The Right Of Communication To The Public

Svensson and others v Retriever Sverige AB

Overview

Linking is the practice of posting clickable links on the internet which lead to content posted elsewhere.

Under s20 of the Copyright, Designs and Patents Act 1988 (“CDPA”), it is prohibited to communicate to the public by electronic transmission the whole or a substantial part of a work which is protected by copyright. This prohibition was introduced by Article 3 of the EU’s Copyright Directive, implemented in the UK by the Copyright and Related Rights Regulations 2003.

Whether or not posting a link to somebody else’s work constitutes a communication of the work to the public so as to infringe s20 of the CDPA was previously unclear. The point was dealt with in Svensson and others v Retriever Sverige AB by the Court of Justice of the European Union (the CJEU) on 13 February 2014. The CJEU’s decision is binding on other EU national courts and tribunals.

Case facts

Retriever Sverige is a media monitoring company that provides clickable links to articles published by other websites and then charges users to access articles. Four Swedish journalists claimed in the Stockholm District Court that Retriever Sverige had infringed their exclusive right of communication to the public of their articles by posting hyperlinks to them. The journalists’ articles were originally posted online on the website of a newspaper and were accessible free of charge. The Swedish Court of Appeal referred four questions to the CJEU.

1. Does supplying a clickable link constitute an act of communication to the public?

2. Does it make any difference to the answer to question 1 whether or not the articles were available on their host website without any access restrictions?

3. Does it make any difference to the answer to question 1 whether the link sent users to a new website or merely presented the linked-to articles on the same website so as to give the impression that it is appearing on the same website (the practice known as “framing”)?

4. Is it possible for a Member State to give wider protection to authors by widening the interpretation of the concept of communication to the public?

Decision

The CJEU answered these questions as follows:

– In determining whether an act is a communication to the public, the concept of communication should be broadly interpreted and the provision of a clickable link does constitute an act of communication.

– However, providing clickable links to works which are already freely available on another website is not a communication to the public because the provision of the link would not lead to the works being communicated to a new public (our emphasis). The initial communication of the work was already available to all internet users with no restrictive measures in place.

– It would not make any difference whether the link sent users to a new website or merely presented the linked-to articles on the same website (known as “framing”).

– Member States are not permitted to give wider protection to copyright holders by laying down a wider interpretation of communication to the public than that contained in Article 3 of the Copyright Directive.

Implications

This decision means that once a work is posted on a website where it is freely accessible to the public, the author cannot control how internet users subsequently access this work. For example, a website owner will not be able to use copyright law to ensure that users who wish to access a certain piece of work would have to go via their homepage, where most of their advertising space may be located.

The ruling will benefit websites which aggregate freely available content for users or deploy hyperlinks as references.

It should, however, be noted that the Svensson ruling is not likely to apply where the content linked to was already infringing copyright. The High Court decision in Paramount v BskyB (13 November 2013) held that it this would indeed constitute communicating to a new public.

One consequence of Svensson may be an increase in access restrictions such as subscription requirements and/or pay walls to prevent authorised linking.

We may also find that there is an increase in database infringement cases, as in contrast to Svensson, the CJEU ruled in the Dutch case of Innoweb in December 2013 that linking to content taken from a database on another website led to an infringement of database rights.

There is also likely to be further case law on the exact meaning of “freely accessible”.

This article was written by Paul Herbet, Partner, with assistance from Trainee Solicitor Ellie Bowker.

This guide is for general information and interest only and should not be relied upon as providing specific legal advice. If you require any further information about the issues raised in this article please contact Paul Herbert or call 020 7404 0606.