In 2012, the Court of Appeal of Svea (Sweden) submitted to the European Court of Justice (“ECJ”) preliminary questions on whether providing hyperlinks constitutes an act of communication to the public under Directive 2001/29/EC (the “Copyright Directive”). This Directive stipulates that authors have the exclusive right to authorize or prohibit any communication of their works to the public.
The background facts of this specific case are the following: news articles from the daily newspaper Göteborgs-Posten are published on its own website which is freely accessible. A Swedish company, called Retriever Sverige, provides its clients with hyperlinks to news articles that are published on
other websites, including that of Göteborgs-Posten. The journalists who were authors of those articles saw this hyperlinking as a breach of their copyright.
On 13 February 2014 the ECJ ruled that a clickable hyperlink to an authorized publicly available work does not infringe the “communication to the public” right because there is no communication to another, new public. In other words: while a link is an act of making available and where a work is already freely accessible on the Internet, then that act of making available does not require the consent of copyright holders because that act does not communicate the work to a “new public”. The ECJ indicates that a new public is a public that has not been taken into account by the copyright holders at the time the initial communication was authorized. And there is no such “new public” from the website operated by Retriever Sverige.
The ECJ’s conclusion is that website owners are allowed to redirect Internet users, via hyperlinks, to protected works that are available in a freely accessible basis on another site, without the authorization of the copyright holders. It must be kept in mind that different considerations apply regarding the situation where a hyperlink takes you to a website that is not freely available. Furthermore, the ECJ concluded that the Member States do not have the right to give wider protection to copyright holders by broadening the concept of “communication to the public”.
