Post-Svensson Stress Disorder #1: Does it matter whether linked content is lawful?

Last week's decision of the Court of Justice of the European Union (CJEU) in Case C-466/12 Svensson was not just keenly awaited but has already been keenly discussed on this blog [here and here, and to some extent here, and above all see several readers' comments] and elsewhere [here, here, here, here, here, here, here, here...].

The CJEU 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.

Despite its apparent clarity, the neat 42-paragraph judgment has already raised several doubts as to the practical implications that the principles laid down by the CJEU might and will have.

This is why the IPKat has decided to run a short Post-Svensson Stress Disorder series to address in more detail some of the issues that every European's (no matter whether from the EU or outside) favourite Court made not so clear in this decision.

Let's start today with a sudden question that has arisen in the minds and hearts of these two Kats:

Does it make a difference whether the content one hyperlinks to has been placed on a certain website without the authorisation of the relevant copyright holder?

Put otherwise: Can a hyperlink to content that has been placed on a certain website without the authorisation of the relevant rightholder be considered tantamount to an (unauthorised) act of communication to the public?

The first time these Kats read the decision’s conclusions, they were under the impression that that the answer of the CJEU was in the negative.

Is it OK to hyperlink
to unauthorised content?

By stating that “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’”, it could appear that “the owner of a website may, without the authorisation of the copyright holders, redirect internet users, via hyperlinks, to protected works available on … another site”, and do so irrespective of whether the copyright holder’s had authorised that “site” to host his or her work(s).

However, it would seem that this conclusion may not be correct. 

As all copyright enthusiasts already know by heart, the CJEU solved the issue of whether a hyperlink may amount to communication to the public by focusing on the notion of “new public”.

Having observed that “the provision of clickable links to protected works must be considered to be ‘making available’ and, therefore, an ‘act of communication’” and that the “indeterminate and fairly large number of recipients” who could potentially use the link can well be considered a “public” within the meaning of Article 3(1) of Directive 2001/29, the CJEU excluded that links to freely available works (news articles in this case) could be considered as falling within the notion of communication to the public. This is because:

“[I]n 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 … 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”

The notion of “new public” appears as a subjective criterion, rather than an objective requirement.

A “new public” is the “public that was not taken into account by the copyright holders when they authorised the initial communication to the public”.

Thus, what becomes really crucial is the following:

What public does the copyright holder take into account when he or she authorises the initial communication of his or her work to the public on the internet?

Earlier CJEU case law may provide some guidance in this respect.

In Case C-306/05 SGAE, the CJEU made reference to the WIPO’s Guide to the Berne Convention stating that, when the holder of copyright in a musical work “authorises the broadcast of his work, he considers only direct users, that is, the owners of reception equipment who, either personally or within their own private or family circles, receive the programme”. Accordingly, the CJEU concluded that use of television sets for playing music in a hotel goes beyond such direct users’ circle.

In later decisions the CJEU applied the same principle to TV broadcasts. In Case C-136/09 Organismos Sillogikis Diacheirisis Dimiourgon Theatrikon kai Optikoakoustikon Ergon, and Joined Cases C‑403/08 and C‑429/08 FAPL the CJEU found that, when authorising the initial communication to the public of their works, copyright holders would not consider those watching TV in hotels and pubs as the direct (initial) public. Rather the “direct public” in such rightholders’ minds would include “only the owners of television sets who, either personally or within their own private or family circles, receive the signal and follow the broadcasts”.

What kind of public does he have in mind?

In Joined Cases C‑431/09 and C-432/09 Airfield NV Canal Digitaal BV, the CJEU considered the case of satellite broadcastings, and stated that, when the initial communication to the public is not carried out by the copyright holder, the “new public” is the “public which was not taken into account by the authors of the protected works within the framework of an authorisation given to another person”.

Svensson is the first decision in which the CJEU took into consideration the case of a copyright holder that authorised the initial communication of his or her work(s) on the internet.

Comparatively, it would seem that the Svensson copyright holder is much more “open-minded” than the copyright holders in earlier case law. Whilst the latter appeared to only consider personal or family users, the copyright holder that authorised the initial communication on the internet seems to know that his or her direct public is not so narrow, but is rather composed by “all Internet users [who] could have free access to them” (provided, of course, that the content is freely available).

Open-minded or not, in assessing the existence of a “new public” (and, as result, the occurrence of an act of communication to the public), both Svensson and earlier CJEU case appear to agree that it is the copyright holder’s idea of the public to which the work is made available at the time of the first communication that matters.

If the copyright holder does not perform or authorise the initial communication, he or she would logically not take into account any public.

Accordingly, if works have been initially made available on the internet without the consent of the copyright holder, any subsequent act of communication of the infringing work – including hyperlinking to it – makes the work available to a new public.

Thus - and this a conclusion that these Kats find less sexy than the apparent exciting simplicity of the response of the CJEU in Svensson – consent of the copyright holder, or lack thereof, is material in order to assess whether a certain hyperlink amounts to an act of communication to the public.

Consequently, there appear to be two cumulative conditions for linking not to be considered an act of communication to the public:

(i)         The work has been initially communicated by the copyright holder or with his or her consent;

(ii)        The work is freely available on a certain website, this meaning that it is accessible potentially to all internet users without restrictions.

Tolomeo begins to think that 

Svensson might be 

much ado about nothing

As regards the first condition, does this entail a burden on the subject who links to a certain work to make sure that the content has been made initially available by the copyright holder or with his/her consent? If this interpretation of Svensson was correct, then we could say that the devil is not just in the detail but also in one’s link. How could one determine that a certain work has been made initially available with the relevant rightholder’s consent?

In addition, there might be instances when the “new public” requirement may be difficult to apply in practice, especially in the “subjective” terms embraced by the CJEU. Let’s take, for instance, the case of a work (eg a tale published on its author’s blog) that has been initially made freely available by the relevant rightholder on a certain website and has been illicitly reproduced by a third party on his/her website. If you hyperlink to the illicitly reproduced content are you infringing the relevant rightholder’s copyright? You might argue that there is no “new public” in this case because the relevant rightholder made the work initially available on a certain website for anybody to enjoy. However, there would be “new public” if you considered this requirement in objective terms as referring to any public that might access authorised copies of one’s works, not also unauthorised reproductions.

Having said all this, there seems that two further questions may arise:

(1)  Did we need a CJEU’s decision to know that one can lawfully link to freely available content made available by the copyright holder or with his/her consent?

(2)  What does “freely available” mean? Is it just a matter of technical availability or do also possible contractual restrictions (or lack thereof) play a role?

While the latter is going to be central to the next Post-Svensson Stress Disorder episode, one may wonder whether, in light of the first question, Svensson may not be so seminal after all … Or are we missing something? What do the readers think?