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THAT LINKING FEELING: EUROPEAN COURT DECISION ON COPYRIGHT AND HYPERLINKS

Today the Court of Justice of the EU handed down its eagerly anticipated answer in the Svensson case to what was essentially the following important question: can a copyright owner control the provision on a website of a hyperlink to their work located on another website?

Background

Mr Svensson, a journalist, had written an article that was published online in a Swedish newspaper. Retriever Sverige AB, a media monitoring organisation, provided paying customers with access to newspaper articles. Those customers conduct searches on Retriever’s website and, in response, receive a list of hyperlinks to relevant articles on other websites, such as Mr Svensson’s.  Mr Svensson objected to this.  He said that the provision of hyperlinks in this way constituted a ‘communication to the public’ of his work which he was entitled to control.  Copyright entitles copyright owners to control the use of their works in a number of different ways, including ‘communicating to the public’ which includes ‘making available to the public’ on demand (e.g., by posting it on a website).

Decision

The Court of Justice effectively decided that, in this case, the answer to the question was “no”.  Mr Svensson had already made his work freely accessible to all Internet users on another website. The Court of Justice has decided in a number of previous cases that a copyright owner is entitled to control only communications to a new public (i.e., a public not contemplated by the copyright owner when they initially made available their work) and that is what the Court relied upon here.  As Mr Svensson had already communicated his work to all Internet users he was precluded from relying on the communication to the public right to stop others such as Retriever providing hyperlinks for use by Internet users.

The future

What the Court did not do was rule out the possibility that, in different circumstances, a copyright owner might be able to control the provision of hyperlinks.   The Court decided that the provision of a hyperlink on a website to a work located on another website was an act of “communication” of that work and that it would be a communication “to the public”.  The determinative issue remains, of course, whether such a communication is to a new public.  

If, for example, the hyperlink provided access to a work on another website by circumventing a paywall, there would be a new public because the copyright owner would not have initially intended to communicate their work to that public (i.e., a non-paying public).  What is less clear is the extent to which a website’s terms of use - as opposed to technical measures restricting access like paywalls - might be relied upon to determine the ‘public’ initially contemplated by the copyright owner.

Viewed more broadly, the Court’s decision does appear to strike a balance between the concerns of copyright owners who are keen to ensure that their arsenal of weapons against pirates remains well-stocked (if they are able to control the use of hyperlinks, they may be in a position to restrict the dissemination of pirated content by linking) and of web users who are keen not to see their ability to navigate the web fettered.

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