Justin Koo, PhD Candidate at King’s College London
The much anticipated hyperlinking case of Svensson was delivered by the CJEU on the 13th February 2014. Such was the importance of the impending decision, several cases were stayed pending its outcome – C More Entertainment (Case C-279/13), Bestwater (Case C-348/13) and Paramount v B Sky B. Oddly enough, there was no Advocate General’s Opinion which was surprising given the potential implications of the case including the undermining of the Internet as well as the possibility of changes for use and licensing of copyright works online.
The dispute at hand concerned the provision of clickable hyperlinks to the claimant’s newspaper articles. As such the claimants argued that the provision of clickable links by the defendant made the works available to the public and as a result was a communication to the public under Article 3(1) of the Information Society Directive 2001. In response the defendant argued that providing links to works communicated to the public on other websites does not constitute copyright infringement. Furthermore, the act of hyperlinking was not a transmission of the work as it involved mere indication to their clients of websites containing works of interest. In light of this, the Swedish court referred 4 questions to the CJEU (only the first three will be discussed in this article):
(1) If anyone other than the holder of copyright in a certain work supplies a clickable link to the work on his website, does that constitute communication to the public within the meaning of Article 3(1) of Directive [2001/29]?
(2) Is the assessment under question 1 affected if the work to which the link refers is on a website on the Internet which can be accessed by anyone without restrictions or if access is restricted in some way?
(3) When making the assessment under question 1, should any distinction be drawn between a case where the work, after the user has clicked on the link, is shown on another website and one where the work, after the user has clicked on the link, is shown in such a way as to give the impression that it is appearing on the same website?
(4) Is it possible for a Member State to give wider protection to authors’ exclusive right by enabling communication to the public to cover a greater range of acts than provided for in Article 3(1) of Directive 2001/29?’
The CJEU in delivering its judgment addressed the first three questions together interpreting it to mean whether “the provision on a website of clickable links to protected works available on another website constitutes an act of communication to the public…where on that other site the works concerned are freely accessible.” Thus, the question for the Court in simple form was whether the act of hyperlinking already freely available works on the Internet was a communication to the public requiring authorisation. In order to determine this, the Court followed the established rule that the act must be a ‘communication’ and to a ‘public’. Following this, the CJEU held that the provision of clickable links was an act of communication because it made the works available and moreover, it was to a public because the act of communication was made available to an indeterminate and fairly large number of recipients – Internet users.
However, for the defendant’s act of hyperlinking to require the claimant’s authorisation, the communication must have been made to a new public. That is a public not taken into account by the copyright holders when they authorised the initial communication to the public. But as the works being linked to were already freely accessible on the Internet, the Court held that the defendant’s links were not directed at a new public because the initial communication by the claimant would include all of the defendant’s public because the works were freely available to any Internet user. In other words, there was no new public because the initial communication was aimed to all Internet users in virtue of it being freely accessible. Therefore, it was irrelevant for the Court whether the works were being displayed on the defendant’s page so as to give the impression that the information originated from there rather than from an external source.
Despite the Court’s finding that the defendant’s act was not a communication to the public requiring authorisation, the possibility is left open that an act of hyperlinking can amount to an infringement of Article 3(1) where the provision of the link makes accessible a work which is not ordinarily accessible for example through the circumvention of security procedures on the website being linked to. As a result of this the hypothetical question must be asked whether a hyperlink to a work that was uploaded without permission would amount to an infringement of Article 3(1) (for example links to websites streaming unauthorised content such as films or sports). This is problematic not only because the Svensson case does not give us clear guidance about the answer but also because of the general undesirability of the criteria used in the Svensson case.
In the first place, the new public criteria should not be used given that it was expressly rejected in the preparatory works of the Berne Convention. Instead the concept of the ‘organisation other than the original’ was adopted under Article 11bis(1)(ii) and that is the correct criterion to be used. Secondly, from a normative perspective it is highly questionable whether the act of hyperlinking should attract copyright infringement. This is because the act of hyperlinking is essential to the infrastructure of the Internet and moreover, is more about facilitating access to works than causing actual use and infringement. As such the act of hyperlinking should fall outside the scope of the communication to the public right given its technological and informational purpose. However, if this is ignored, a useful alternative may be to treat hyperlinks in terms of secondary liability akin to authorisation in Australian copyright law or contributory liability in American copyright law.
Although many a copyright lawyer breathed a sigh of relief on hearing that hyperlinking does not amount to a communication to the public on the facts of Svensson, the CJEU’s handling of the case leaves a lot to be desired.
 Case C-466/12 Svensson and others v Retrierver Sverige AB
 Case C-279/13 C More Entertainment AB v Sandberg
 Case C-348/13 Best Water International v Mebes and Potsch
 Paramount Home Entertainment International Ltd and others v British Sky Broadcasting Ltd and others  EWHC 3479 (Ch)
 See Case C-607-11 ITV Broadcasting Ltd v TV Catchup Ltd
 See Case C-306/05 SGAE v Rafael Hoteles SL
 See SGAE v Rafael Hoteles and Case C-136/09 Organismos Sillogikis Diacheirisis Dimiourgon Theatrikon kai Optikoakoustikon Ergon