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
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.
A reference for a preliminary ruling allows the courts and tribunals of the Member States, in disputes which have been brought before them, to refer questions to the Court of Justice about the interpretation of European Union law or the validity of a European Union act. The Court of Justice does not decide the dispute itself. It is for the national court or tribunal to dispose of the case in accordance with the Court’s decision, which is similarly binding on other national courts or tribunals before which a similar issue is raised.
The article above is intended for information purposes only by drawing your attention to the newest practice of the European Court. It should not be construed as (binding) legal advice. For a thorough understanding of the subjects covered and prior acting on any issue discussed we kindly recommend Readers consult Ilieva, Voutcheva & Co. Law Firm attorneys at law.
