Brussels, 13/02/2014 (Agence Europe) - 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 website. This is the case even if, when they click on the link, the users of the website are under the impression that the work is appearing on the site that contains the link.
This was the response of the Court of Justice of the EU to the Court of Appeal of Svea (Sweden), which asked its opinion in a case between journalists of the newspaper Göteborgs-Posten and the company Retriever Sverige, which used hyperlinks on its website to redirect its clients to articles by the said journalists which are freely accessible on the newspaper's website, without the users being aware of this and without the authorisation of the copyright holders (see EUROPE 11017). The Swedish court asked whether this practice constitutes an “act of communication to the public” in the sense of the directive on copyright in the information society (2001/29/EC). If so, the establishment of hyperlinks by Retriever would not be possible without the authorisation of the journalists.
In its judgment, the Court responds that the provision of clickable links to protected works does indeed constitute an act of communication in the sense of the directive, in that it makes a work available to the public in such a way that members of the public may access it. In addition, the potential users of the site operated by Retriever can be regarded as a public, since their number is indeterminate and fairly large. However, in order for the authorisation of the copyright holders to be necessary, as the directive requires, it must be a “new public”, that is to say one which had not been taken into account by the copyright holders at the time the initial communication was authorised. In this case, however, there is no such new public, as the works (press articles) offered on the newspaper's website were already freely available. Users of Retriever Sverige's website must, therefore, be deemed to be part of the public already taken into account by the journalists. That finding is not called into question by the fact that the internet users who click on the link have the impression that the work is appearing on Retriever Sverige's site, the Court adds.
The position would have been completely different if the articles had not been freely accessible and if Retriever Sverige had allowed users, via its hyperlinks, to consult the articles on the newspaper's website by circumventing restrictions put in place by the site in order to restrict public access to that work to its subscribers only. In that situation, Retriever Sverige would have been subject to the prior authorisation required by the directive, as its clients would not have been taken into account as potential public by the copyright holders when they authorised the initial communication, and would therefore have been a new public in the sense of the directive.
Lastly, the Court states that the member states do not have the right to give wider protection to copyright holders in their national legislation by broadening the concept of “communication to the public”. That would have the effect of creating legislative differences between member states and generating legal uncertainty. (FG/transl.fl)