BREAKING NEWS: CJEU in #Svensson says that in general it is OK to hyperlink to protected works without permission

The Svensson judgment is out!!!

UPDATE: at 10:47 am the ruling was made available here


The moment every copyright and internet enthusiast (=everybody) was waiting for has finally come. 

This morning the Court of Justice of the European Union issued its keenly awaited decision in Case C-466/12 Svensson [background posts here; interestingly labelled on the Curia website as a case concerning freedom of establishment], a reference from the Svea hovrätt [this Kat reckons that the Svea court of appeal is one of the six appellate courts in the Swedish legal system] asking the CJEU to answer the following questions:

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/EC of the European Parliament and of the Council of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society?

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/EC of the European Parliament and of the Council of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society? [This is a question that this Kat tried to address here, responding in the negative]

Impatience is a feeling
those waiting for Svensson
have been very much familiar with

Incidentally, during the 48 hours that preceded the decision, the IPKat and Merpel ran a poll asking readers: "How will the CJEU rule on the legality of hyperlinks?". 

We received 216 votes [thanks so much to all those who took part in our poll!], with a broad majority of voters (61% - 133 votes) thinking that "There's no single answer: it all depends on the circumstances". 32% voters (70 votes) believed that the CJEU would say "No way do hyperlinks infringe: you can link all you want, without fear of liability", while 6% (13 votes) were inclined to think that the CJEU would say that "Unauthorised hyperlinks are copyright infringements".

It is also worth recalling that the CJEU decided not to seek an opinion from one of its most beloved members , these being the Advocates General [yet - and this another strange thing - again on the Curia website Eleanor Sharpston is indicated as the AG in this case: can anyone explain?], possibly on grounds that the issues at stake in this case were fairly straightforward to address [Merpel admires boldness, and this is indeed likely to make a great example of what being bold actually means].

Anyway: Let there be love light!

While the judgment is not yet available on the Curia website, according to the relevant 
press release [whose hyperlink - irony! - did not work for quite a while]:

"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. This is so 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"

More specifically:

In its judgment delivered today, the Court holds that the provision of clickable links to protected works constitutes an act of communication. Such an act is defined as the making available of a work to the public in such a way that members of the public may access it (even if they do not make use of that possibility). 

The Court points out, however, that the communication must be directed at a new public, that is to say, at a public that was not taken into account by the copyright holders at the time the initial communication was authorised. 

The Court concludes from this that the owner of a website redirect internet users, via hyperlinks, to protected works available on a freely accessible basis on another site.

The position would be different, however, in a situation where the hyperlink permits users of the site on which that link appears to circumvent restrictions put in place by the site on which the protected work appears in order to restrict public access to that work to the latter site’s subscribers only, since in that situation, the users would not have been taken into account as potential public by the copyright holders when they authorised the initial communication.

Lastly, the Court states 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’. That would have the effect of creating legislative differences and, accordingly, legal uncertainty, when the directive at issue is specifically intended to remedy those problems [moment of personal vanity: this Kat was right!]

This Kat is going to read the judgment carefully as soon as it becomes available and 

come back with a more detailed analysis shortly. So: stay tuned!