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Thursday, 13 February 2014

Early thoughts on Svensson: communication/making available, 'new' public, altering the scope of exclusive rights

Earlier today [here] the Court of Justice of the European Union (CJEU) released its 42-paragraph judgment [it's quite incredible that the Court could decide a case as important as this without the benefit of an Advocate General's Opinion and in just so few paragraphs! Is this the start of a new era for the CJEU?, wonders Merpel] in Case C-466/12 Svensson.

It held that 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.

Now that the judgment has been made available on the Curia website, this Kat has had the chance to read it and is happy to summarise it for our readers and provide some immediate thoughts and impressions.


First of all, it is worth recalling the factual background, which has always looked quite mysterious, at least to this Kat.

The applicants in the main proceedings were all journalists who wrote press articles that were published in the Göteborgs-Posten newspaper and on the Göteborgs-Posten website, were they were also freely accessible [the latter is an important detail, so bear it in mind].

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. 

According to the applicants in the main proceedings, if a client clicks on one of those links, it is not apparent to him that he has been redirected to another site in order to access the work in which he is interested. By contrast, according to Retriever Sverige, it is clear to the client that, when he clicks on one of those links, he is redirected to another site.

The applicants in the main proceedings brought an unsuccessful action against Retriever Sverige before the Stockholm District Court, seeking compensation on the ground that that company had made use, without their authorisation, of certain articles by them, by making them available to its clients [mmmh, this sounds rather familiar: aren't these the same issues and arguments raised in relation to news aggregation services?]
The decision was appealed before the Svea Court of Appeal, which decided to stay the proceedings and refer questions that every copyright enthusiast surely knows by heart.
Leonardo learnt the Svensson questions
by heart ages ago 
If this is not your case, do not worry. Here they are again for your benefit and comfort:
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 [the 'InfoSoc Directive]?

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?
What the Court decided: The first three questions
As it often happens with CJEU references, the Court decided to group some of the questions referred and address them together.
It considered that the first three questions were basically seeking clarification as to whether Article 3(1) of Directive 2001/29 must be interpreted as meaning that the provision, on a website, of clickable links to protected works available on another website constitutes an act of communication to the public as referred to in that provision, where, on that other site, the works concerned are freely accessible.
As the Court held in ITV Broadcasting, the concept of 'communication to the public' includes two cumulative criteria:
  1.         An ‘act of communication’ of a work and 
  2.         The communication of that work to a ‘public’ 
An 'act of communication' is making a work available

As to the first condition, this must be construed broadly in order to ensure, in compliance with recitals 4 and 9 of the InfoSoc Directive, a high level of protection for copyright holders [the CJEU did not cite Infopaq, but readers will surely remember that here the Court held that the principal objective of this directive "is to establish a high level of protection of authors"].

As is apparent from Article 3(1) of Directive 2001/29, for there to be an ‘act of communication’, it is sufficient, in particular, that a work is made available to a public in such a way that the persons forming that public may access it, irrespective of whether they avail themselves of that opportunity [so there is no need for an actual transmission of the work ...]

Sure, thinks Sven,
now we clearly know what the
relationship between communication
and making available is
This said, it follows that the provision of clickable links to protected works must be considered to be ‘making available’ and, therefore, an ‘act of communication’ [so basically communication and making available are the same thing? Or is the Court saying that 'making available' is a sub-genre of 'communication to the public'? Anyway, this part of the judgment is a stepping-stone in the understanding of EU copyright, and likely to generate a good deal of discussion], within the meaning of that provision.

The communication of that work to a ‘public’ means to a ‘new’ public

According to the Court, it follows from Article 3(1) of Directive 2001/29 that, by the term ‘public’, that provision refers to an indeterminate number of potential recipients and implies, moreover, a fairly large number of persons. 

However, according to settled case-law, 

"in order to be covered by the concept of ‘communication to the public’, within the meaning of Article 3(1) of Directive 2001/29, a communication, such as that at issue in the main 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"

In the circumstances of this case, making available the works concerned by means of a clickable link, such as that in the main proceedings, does not lead to the works in question being communicated to a new public. This is because:

"The public targeted by the initial communication consisted of all potential visitors to the site concerned, since, given that access to the works on that site was not subject to any restrictive measures, all Internet users could therefore have free access to them." [this is a landmark conclusion, which basically has saved the world and the way the internet functions]
The only one who's not laughing is the one who
does not agree with the 'new' public requirement
       This means that:
"[W]here 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."
In addition, such a finding cannot be called in question when internet users click on the link at issue, and the work appears in such a way as to give the impression that it is appearing on the site on which that link is found, whereas in fact that work comes from another site [interesting: this part of the judgment will be surely recalled when the Court decides Case C-279/13 C More Entertainment (here), and C-348/13 BestWater (here, a case that has been stayed pending the decision in Svensson), concerning different types of links].
On the other hand [and quite reasonably], where a clickable link makes it possible for 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, and the link accordingly constitutes an intervention without which those users would not be able to access the works transmitted, all those users must be deemed to be a new public, which was not taken into account by the copyright holders when they authorised the initial communication, and accordingly the holders’ authorisation is required for such a communication to the public.
What the Court decided: The fourth question
By its fourth question, the referring court asks, in essence, whether Article 3(1) of Directive 2001/29 must be interpreted as precluding a Member State from giving wider protection to copyright holders by laying down that the concept of communication to the public includes a wider range of activities than those referred to in that provision.
How a Kat feels when
the CJEU makes her day
This Kat wrote about this very issue and concluded that the Court should respond in the negative. An answer to the contrary would have gone against Recital 23 of the InfoSoc Directive, and would have also contradicted the rationale and objectives of the InfoSoc Directive, thus impairing the level playing field that the EU intended to establish by harmonising copyright exclusive rights. 
Above all, should a Member State conceive the right of communication as covering a broader number of acts as those codified in the InfoSoc Directive, this would result in the reinstatement of those barriers to the free circulation of goods and services that the adoption of the InfoSoc Directive intended to remove. 
Ultimately, effectiveness of EU action in the area of copyright would be negatively affected, in contrast with the doctrine of EU pre-emption
This conclusion appeared supported also by recent decisions of the CJEU (in particular Luksan), which suggest that Member States may neither restrict nor broaden the scope of exclusive rights.
Well, it seems that the CJEU agreed with this Kat [what a great virtue modesty is], and in fact held that:
"[T]he objectives of the [InfoSoc] directive are, inter alia, to remedy the legislative differences and legal uncertainty that exist in relation to copyright protection. Acceptance of the proposition that a Member State may give wider protection to copyright holders by laying down that the concept of communication to the public also includes activities other than those referred to in Article 3(1) of Directive 2001/29 would have the effect of creating legislative differences and thus, for third parties, legal uncertainty. Consequently, the objective pursued by Directive 2001/29 would inevitably be undermined if the concept of communication to the public were to be construed in different Member States as including a wider range of activities than those referred to in Article 3(1) of that directive. It is true that recital 7 in the preamble to the directive indicates that the directive does not have the objective of removing or preventing differences that do not adversely affect the functioning of the internal market. Nevertheless, it must be observed that, if the Member States were to be afforded the possibility of laying down that the concept of communication to the public includes a wider range of activities than those referred to in Article 3(1) of the directive, the functioning of the internal market would be bound to be adversely affected.”
It concluded that Article 3(1) of Directive 2001/29 cannot be construed as allowing Member States to give wider protection to copyright holders by laying down that the concept of communication to the public includes a wider range of activities than those referred to in that provision.

This Kat is pleased with the decision in Svensson, in that it looks both sensible and balanced. The CJEU did not break the internet and did not leave rightsholders without protection. Of course, as it always happens, the ruling may (and will) attract criticism, but overall it seems that today has been a good day for copyright in the EU. 


SG said...

Please don't let animated GIFs be a new trend in IPKat articles. They're very distracting!

Alberto Bellan said...

They're too modern (at least late ninetines). Keep up with the beloved late 80's layout!

Eleonora Rosati said...


John H said...

Quick question: I'm pretty sure that para 31 only says that a clickable link to a paywalled web page only infringes copyright if it allows users to circumvent the paywall. Correct?

Just checking because I've seen at one commentator so far suggesting that any link to a paywalled web page will infringe copyright.

Anonymous said...

For some odd reason, the US Napster case comes to mind.

There, liability was found even though the site itself relied on a separate individual to take steps that resulted in the IP violation.

Anonymous said...

Hmm not so sure. They expanded new public and then nullified it.The first part on whether this was a communication is not well reasoned. This should have been the crux of the case. It would have been far better if they had simply stated that it was not an act of communication without reference to the notion of public. It makes Meltwater very difficult for them to deal with although that is more about what happens after clicking the link. The other point is what are these restrictions which should not be circumvented-TPMs or would terms and conditions suffice.

Anonymous said...

So where does this leave Newzbin, and other sites which may index unlicensed content, that is in a narrow sense already available to their public, though perhaps not quite so easy to find and discover?

Does this ECJ ruling nullify the previous UK jurisprudence?

Or if not, where does it leave other search engines standing, if they are indeed "communicating" content?

Mark Perkins said...

A terrible ruling with either no comprehension of how the web works or trying to fit a square peg in a round hole.

Clickable links are merely references (thus the HREF coding) - similar to a bibliographic reference plus the address of book shops stocking the relevant item.

The equivalent of making available to the public are servers which respond positively to requests from the clickable links.

I do not think it would be too difficult to come to the same effective legal conclusions without such tortured (and dangerous) reasoning.

Anonymous said...

I have to agree with Mark Perkins. The definitions of "communication" and "making available" in this judgement seem perverse.

If I go down to the local county records office, and make a handlist to some of the unpublished works in the archive, am I now considered to be "communicating" these works to the public?

If I publish a list of the plays that are currently on in the West End, am I "making them available" ?

*Not* a good decision.

Dave C said...

An question that follows from this conclusion relates to links that are not indexed. If a first site hosts content that is not indexed, has it been communicated to the public? Would providing an indexable link to the previously un-indexed context infringe copyright?

The EPO developed a test for whether a document has been made available to the public (T 1553/06) which might be relevant.

Anonymous said...

Anonymous @ 11:00 and Mark Perkins have it backwards.

The nature of the clickable link must be understood for what it is - in toto.

Reading the two posts back to back make the "Clickable links are merely" into something that they are merely not. Clickable links are NOT merely a scribbled list on a piece of paper. If they were, then the case would not be here. They are more. If they were not more, then they would not be clickable links.

One cannot take away their function and think that they are still talking about the same item.

One can provide the equivalent of the penciled list, replete with directions to the location where the contents of the list may be obtained and NOT have a clickable link. That is how it was done before clickable links came about (yes Virginia, the world did exist before the internet). But when you do more than that, well, it simplest terms, you do more than that.

However, all is not lost. One theory that I have not seen posted is that the person who connects their stuff to the internet has provided an implicit license to anyone (and in fact, everyone) on the internet. This is not to say that copyright rights are completely thrown away, but surely the implicit license at least means that access to the work (and in the digital age, this access does mean at least reproduction at the user's terminal) is granted.

Nothing is forcing the copyright holder to put their work in a condition of being accessed.

Anonymous said...

@ Anon 13:51

So you're saying is that if I type "" in my post, that someone can then cut and paste into the address bar of their browser, then that is one thing;

but if I add "a href=" to turn it into then that is something qualitatively different ?

Are you serious or are you trolling ?

Anonymous said...

Anonymous @18:46,

Are you serious?

One is mere text and no function, the other, well is different for a reason, and Clearly does something different.

It appears that you want to say that the two are exactly the same - when clearly , they are not.

Then once you gather that difference, continue to read my post and the implicit license that I suggest exist for the fact that whoever has the ipkat publication has made a conscious effort to allow others access to that material.

Are you trolling, or do you want to be serious?

Anonymous said...

@ Anon 23:17

My apologies - I'd completely missed the satirical/ironic intent of your earlier post.

Yes, of course the difference between "Ctrl-C Ctrl-V Return" and "Click" clearly makes all the difference as to whether something is being made available/communicated to the public or not.

Because that's a distinction that totally makes sense, doesn't it?

Anonymous said...

What about this link (new public)?
<a href=">Our view on C-466/12</a>

Anonymous said...

I wrote a long comment to this post, but it seems to have disappeared (probably no bad thing). But anyway, on the "there's no difference between a clickable link and the work itself" point (to paraphrase it appallingly), I wondered:

What about a page with a clickable link to a page with a clickable link to a work - is that a communication of the work? If not, why not? If so, what about a chains of links, say via several independent websites, that eventually leads to a work?

And does it make any difference if a web page with a clickable link says something like "by clicking this link you confirm you are permitted to view the work linked to"?

Anonymous said...

Anonymous @ 10:25,

I see that you want to ignore the functionality of what is under discussion because somehow additional steps not under discussion can result in the same thing.

You really are a douche - how is that for satirical/ironic intent?

Do you understand law at all?

Tim Jackson said...

"So where does this leave Newzbin, and other sites which may index unlicensed content, that is in a narrow sense already available to their public, though perhaps not quite so easy to find and discover?"

A "new public" means "a public that was not taken into account by the copyright holders when they authorised the initial communication to the public." See paras 24 and 27 of the decision.

If the content is not authorised by the copyright holders, I imagine that would be held to be directed to a new public. So it would infringe, providing the indexing is "communication".

As I recall, the English court held it was a "communication" in the Newzbin case. Newzbin were not providing clickable links, but .nzb files. The unauthorised copies of films had been split into hundreds or thousands of messages posted in binary Usenet newsgroups. An .nzb file indexed all these messages to enable the user to download them all and piece the film together again.

Mark Perkins said...

Difference between URL and clickable link:

The URL is the reference / citation (plus the address of the supplier = bookshop)

The clickable link (href URL) is just something that allows the user to REQUEST the document. It is still the server which decides how to respond (or not) to the request from the 'clicked' link - ie. makes available to the publlic - and NOT the clickable link.

This is why sometimes there is a '404' response to a clicked link, when, for example, the 'making available' server is down

Anonymous said...

@ Anon 13:19

Rather than being offensive, why not tell us why you think a clickable link ought to be treated differently to a copyable link, for the purposes of copyright law ?

Anonymous said...

Apologies to all that take my posts as 'offensive,' but I am merely responding in kind to those that I would deem equally as offensive by pretending that there is no difference between mere words and hyperlinks.

Yes, mere words can be further manipulated and one can then end up at the site that a fully functional hyperlink would take you.

But to pretend that there is no difference is, to put it bluntly, asinine.

If you want to compare a full function to a full function, take the pre-internet steps and compare them for an apples-to-apples, result-to-result comparison. Such a comparison would necessarily include the steps of tracking down the physical address, obtaining the actual copyrighted material, and making a copy of that material to have in one's possession.

To also disregard the caveat that I introduced about an implicit license is equally as offensive.

Let's not play childish games and pretend that we are on the up and up, ok?

Paul Edward Geller said...

The Court left distinctions smudged in its ruling, for example, between an intermediary's providing a link or some other threshold step to access, on the one hand, and the end-user's taking the step, accessing, etc., on the other. How, most charitably, to read this smudging? Well, perhaps there was no need to sharpen up the fine points of how content was accessed as long as no "new" public got access. What's "new"? Well, if the content was made public "worldwide" to start, nothing ...

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