Is a clickable link a communication to the public? New case referred to the CJEU

There are times when your
communications to the public
may not be the
most agreeable ones
2012 will be most certainly remembered (although possibly together with other things) for being the year when the Court of Justice of the European Union (CJEU) either decided or received quite a few references concerning the notion of communication to the public, as per Article 3(1) of Directive 2001/29/EC (the InfoSoc Directive).

Following the pretty controversial decision in Joined Cases C-403/08 and C-429/08 Murphy in October 2011 (noted here and here), on 15 March last the Court delivered two judgments which attempted to clarify the (still) obscure boundaries of the right in question.
These were Case C-135/10 Del Corso (here) and Case C-162/10 Phonographic Performance (Ireland) (here and here), in which the Court held that, while communications by hotels to hotel bedrooms are public, dentist waiting rooms are not.
No communication to the 
public in dentist waiting 
rooms, said the CJEU
Now the CJEU has two further cases to decide.
The first is Case C-607/11 ITV Broadcasting, a reference from the High Court of Justice (Chancery Division) (noted here and here) seeking clarification, among the other things, as to whether rights owners can prohibit communication to the public of their content via third-party internet stream if that content has previously been authorised for communication via analogue means.
The second is Case C-466/12 Svensson, a reference from the Svea hovrätt (the Svea court of appeal is one of the six appellate courts in the Swedish legal system) asking the CJEU to address 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 ...? 
  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. But what about clickable links?
  5. 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 ...?
As the case has just been referred, the UK Intellectual Property Office (IPO) is offering those interested the possibility to comment on it by 3 December 2012. If you wish to do so, you can email your thoughts to whether you think that the UK should intervene and some general points about how the questions should be answered.

Merpel thinks that this reference is quite an important one. This is also in light of the pretty heated debates (see herehere, here ...) which have arisen in the UK following the decision of the Court of Appeal in Meltwater (the case is currently pending before the UK Supreme Court, which is expected to hear it sometime in early 2013).
Should any Swedish readers know something more about this case (eg factual background) could let the IPKat know?
Is a clickable link a communication to the public? New case referred to the CJEU Is a clickable link a communication to the public? New case referred to the CJEU Reviewed by Eleonora Rosati on Monday, November 26, 2012 Rating: 5


  1. My dear English friends:

    Your Meltwater decision is a meltdown of sound copyright principles. The normally imperturbable Lionel Bently was clearly perturbed in his criticism that can be found here:

    Oops – I just broke the law by linking without permission, and anyone who clicks on that link will be breaking the law too, according to your Court of Appeal, or so it seems.

    Please, dear Merpel, let us settle this before you sue me. I hereby undertake to give you three cat treats and three scratches behind each ear when we next meet.

    Let us hope that your Supreme Court restores some sanity to English copyright law – and does so quickly. Heaven help us as to what the CJEU can (will?) do to compound this mess.

    If only a very large amount of highly absorbent cat litter could make it all go away! I would gladly donate it personally.

    All of this is probably causing the late Sir Hugh Laddie, may he rest in peace and may his memory be a blessing, to be turning over and over in his grave. And I highly doubt that Meltwater would have been so wrongly decided if Sir Robin had been on the panel.

    My best regards from a safe distance,


  2. Here's the basic background:

    A few journalists claimed that Retriever infringed their copyright to articles they had written. All articles had been publiched on major Swedish news sites with permission from the journalists.

    Retriever Sweden AB (Retriever) conducts a search service where customers can order different profiles. Retriever searches the internet through various search engines. When a search is sent, a list of links is created which the customer can click on. When the link list is activated the customers is linked to the respective website where articles can be read, as web-articles.

    The question before the court was. Does a hyperlink as such constitute a communication to the public.


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