The decision of the European Court of Justice in Svensson v Retriever Sverige AB (Case C‑466/12, 13 February 2014) has established some important points about the legality of linking under EU copyright law:
- A clickable direct link to a copyright work made freely available on the internet with the authority of the copyright holder does not infringe.
- It makes no difference to that if a user clicking on the link is given the impression that the work is on the linking site.
- However, it seems that a clickable link will (unless saved by any applicable copyright exceptions) infringe if the copyright holder has not itself authorised the work to be made freely available on the internet (but see further discussion below).
- If the work is initially made available on the internet with restrictions so that only the site’s subscribers can access it, then a link that circumvents those restrictions will infringe (again subject to any applicable exceptions and further discussion below).
- The same is true where the work is no longer available on the site on which it was initially communicated, or where it was initially freely available and subsequently restricted, while being accessible on another site without the copyright holder’s authorisation.
It seems to follow, although this is not very clear in the judgment, that a link to an infringing copy does not infringe if, and for so long as, a copy of the same work is freely available somewhere on the internet with the authority of the copyright holder. (“How could I possibly know that?” you ask. More on that theme below.) But this would not exempt links to infringing copies of works that are not legitimately available on the internet at all, or which have only been legitimately made available on the internet under restrictions.
The Court draws a distinction between freely available content and, on the other hand, restricted content where a link circumvents the restrictions. Are those intended to be the only two possible categories, so that if a copyright work is not ‘restricted’ it is necessarily ‘freely available’? Or are they two ends of a spectrum, the middle of which has yet to be explored? What, for instance, would be the position if the copyright holder has authorised a licensee to make the content freely available on the internet, but the licensee makes it available only on a restricted basis?
- Does ‘restricted’ refer only to technical restrictions (and how sophisticated?), or does it also encompass licence or contractual restrictions?
- The judgment refers only to clickable links. What about other varieties of link, or analogous technologies? The logic of the judgment would seem to apply to inline links where, rather than awaiting the user’s click, the linked-to content is served up automatically to the user when the web page is requested.
- The judgment refers to links ‘to’ copyright works, affording ‘direct’ access to those works. Does the link have to be to the actual work itself in order to make it available, or does a link to a page containing the work suffice? So applying the Svensson reasoning a clickable link to the URL of a news page makes available the HTML text of that page. Does it also make available a photograph which loads automatically as part of the news page, but which is nevertheless a separate copyright work with its own URL capable of being separately linked to? What about a playable video within the page, or a PDF downloadable from that page? Each of those is a separate copyright work requiring a further click by the user to access it. Might they be regarded as indirectly, rather than directly, accessible from a link to the news page containing them?
- Does the reservation for subsequently removed or restricted works apply only to new links created after the initially freely available work was withdrawn or restricted, or do existing links to unauthorised copies automatically become infringing?
- What is the position where initially the work was lawfully made freely available on the internet under an exception to copyright, such as fair dealing? Is that different from when it was done with the authorisation of the copyright holder? On the face of it the Svensson version of the ‘new public’ test would not of itself legitimise linking in the former situation.
It is also important to understand that the Court’s decision only concerns whether a link can amount to ‘communication to the public’ for the purposes of harmonised EU copyright law. It does not deal with other ways in which linking might infringe, for instance by authorising infringement or joint liability for someone else’s infringement. Nor does it say anything about non-copyright issues such as passing off or unfair competition.
Authorising the initial internet communication
The most significant aspect of the Svensson judgment is, oddly, not mentioned in the operative part of the decision (in which the Court provides its definitive answer to the question posed by the referring national court). The operative part says:
“…the provision on a website of clickable links to works freely available on another website does not constitute an ‘act of communication to the public’ … .”
Taken at its face, that could suggest that a link to any freely available work does not infringe, regardless of whether the copyright holder initially authorised the work to be made freely available on the internet. That would broadly legitimise most links. But if that is right it is difficult to understand the numerous references in the judgment to whether the copyright holders authorised the initial communication to the public on the internet, and the potential audience contemplated when they did so. It seems likely that the operative part should instead be understood to mean:
“…the provision on a website of clickable links to works freely available on another website, in circumstances where the copyright holder has authorised such works to be made freely available at [that]/ [an] internet location, does not constitute an ‘act of communication to the public’ … .”
The alternatives ‘that’/‘an’ reflect the possible uncertainty about the effect of the judgment on links to unauthorised copies where the copyright holder has authorised the work to be freely available at some other location on the internet.
The curious case of the freelance journalist
The significance of the copyright holder’s authorisation of the initial internet communication is well illustrated by the facts of Svensson itself. According to the CJEU judgment the Swedish proceedings were between four journalists, Mr Svensson, Mr Sjögren, Ms Sahlman and Ms Gadd, who sued Retriever Sverige AB for compensation resulting from Retriever’s inclusion on its website of clickable links to press articles in which the journalists held the copyright.
“[The journalists] wrote press articles that were published in the Göteborgs-Posten newspaper and on the Göteborgs-Posten website. Retriever Sverige operates a website that provides its clients, according to their needs, with lists of clickable Internet links to articles published by other websites. It is common ground between the parties that those articles were freely accessible on the Göteborgs-Posten newspaper site. …” 
The journalists claimed that by linking to the articles on the newspaper website Retriever was making their articles available to its clients without their consent. When the CJEU discussed ‘new public’ it said:
“a communication, such as that at issue in the [Swedish] proceedings, concerning the same works as those covered by the initial communication and made, as in the case of the initial communication, on the Internet, and therefore by the same technical means, must also be directed at a new public, that is to say, at a public that was not taken into account by the copyright holders when they authorised the initial communication to the public ….
… it must be held that, where all the users of another site to whom the works at issue have been communicated by means of a clickable link could access those works directly on the site on which they were initially communicated, without the involvement of the manager of that other site, the users of the site managed by the latter must be deemed to be potential recipients of the initial communication and, therefore, as being part of the public taken into account by the copyright holders when they authorised the initial communication. 
Therefore, since there is no new public, the authorisation of the copyright holders is not required for a communication to the public such as that in the main proceedings.”  (emphasis added)
The assumption of the Court in coming to this conclusion on the facts appears to be that the four copyright holder journalists all authorised the newspaper to make the articles freely available on the newspaper website – the site on which the initial communication on the internet was made and to which Retriever linked.
“The claimants were four journalists who between them had written 13 articles published by the Göteborgs-Posten newspaper. Three of the journalists were employed by the newspaper, while one was freelance. All of the articles had all been published not only in print, but also online on the newspaper’s website. In the case of one of the articles, which was written by the freelance author, the online publication by the newspaper was not licensed by the author.”  (emphasis added)
- Can I explain to a user with confidence exactly what rules s/he has to follow?
- Will a reasonable internet user think those rules are sensible?
- In any given situation can the user readily ascertain whether what s/he wants to do will infringe?
Svensson just about passes the first question, probably fails the second and certainly fails the third.
The third point is especially significant since, at least in the UK, civil liability for primary copyright infringement is strict. You can infringe by accident, in situations where you are blameless. It is no excuse that you did everything you could to avoid infringement, or that you had no reason to think you were infringing.
What could the CJEU have done differently?
The CJEU could have avoided these problems had it adopted a narrower view of “making available”. It could have restricted it to material intervention in the actual or putative transmission, so that but for the intervention no transmission would take place. In most previous CJEU communication to the public cases the defendant was an actual or putative transmitter. In Airfield the defendant was not, but supplied encryption keys and decoder cards without which the transmission could not take place. Thus there was a material intervention (in effect a participation) in the transmission.
In its first communication to the public case, Rafael Hoteles, the CJEU treated the ‘without which’ transmission requirement as forming part of the test for an ‘act of communication to the public’. In Airfield the ‘without which’ test became mixed up with ‘new public’. Now, in Svensson, the process is complete. ‘Act of communication’ has been completely decoupled from transmission. ‘New public’ is everything. One has to wonder whether this is a wise progression.
This post originally appeared on the Cyberleagle blog and is reproduced with permission and thanks