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The Svensson Judgment – Uncertainties in the Court’s Clarification

Note:  This post is the first of two parts.  The second is here.

As recently reported on this blog, the Court of Justice of the EU (CJEU) was asked to hand down a judgment in a case which is of paramount importance to how the Internet works and users’ daily online activities. In the by-now famous Svensson case nothing less was at stake than the question of whether the provision of a clickable link leading a user to copyright protected works constitutes ‘communication to the public’: an exclusive right under the EU InfoSoc Directive (often called the ‘Copyright Directive’).

To rephrase the question: are Internet users committing large-scale copyright infringements when using and sharing hyperlinks online?

The good news is that sanity has prevailed. The EU’s highest court ruled that the Copyright Directive must be interpreted to mean that the provision of a hyperlink leading users to works that are freely available on the Internet is not subject to copyright protection – thus, it does not require the authorization of the rightholder. Imagine a world in which you would have to ask the rightholder for permission for making use of a hyperlink…

So far so good. While the outcome of the case is surely a win, a close reading of the Court’s reasoning raises a couple of issues. Let’s dissect the two central parts of the Court’s analysis. The CJEU notes that the concept of ‘communication to the public/making available’ includes two cumulative criteria:

  1. An ‘act of communication’ of a work; and
  2. The communication of that work ‘to a public’

With regard to the first criterion, the Court quickly concludes that the provision of clickable links to protected works must be considered to be ‘making available’ and, hence, an ‘act of communication’ (para. 20). The argument is that an act of communication must be construed broadly to ensure a high level of protection for copyright holders, as required by the Copyright Directive. In addition, for this criterion to be fulfilled it is sufficient that “a work is made available to a public in such a way that persons forming that public may access it, irrespective of whether they avail themselves of that opportunity” (para. 19). If the Court had stopped its analysis at that point, all hyperlinks would have indeed been copyright protected.

But what has rescued the Internet was the Court’s reasoning as regards the second criterion. The communication of a work via a hyperlink must be directed at a ‘new public’ to be covered by the Copyright Directive, i.e., a public that was not taken into account by the rightholders when they authorized the initial communication to the public. Since the initial communication consisted of placing the copyright-protected material on a web-page freely accessible to everyone (and not subject to any restrictions), the targeted public must be assumed to be universal – i.e., everybody using the Internet (para. 26).

The concept of a ‘new public’ makes sense. Obviously, it is completely illogical for someone who somehow wants to restrict the availability of his/her work to place it on a web-page that is openly accessible to every person in the world who is connected to the Internet. There is no difference between people accessing that content directly on the web-page where the content has originally been placed or via a hyperlink appearing on another web-page which directly refers users to the original webpage. The targeted public must be assumed to be global. However, the reasoning on what constitutes an ‘act of communication’ of a work merits some further thoughts.

Let’s consider two interesting facts. First, the CJEU’s argumentation differs from the analysis provided by the European Copyright Society in the run-up to the judgment. Some of Europe’s most prominent IP scholars have forcefully argued that a hyperlink cannot amount to a communication because it does not transmit a work. Hyperlinks merely provide the Internet user with information about the location of a page – there is no communication of the work as such. In that sense hyperlinks function like references in that they communicate the existence of content but not the content itself. Translated to the ‘real’ world: if you stand on a market square and tell people about the fact that this or that shop sells copyright-protected or even pirated works, you are clearly not breaching copyright rules. Facts, in this case about the location of content, are, as is well known, not copyrightable. The broader ramifications of this are not to be underestimated: as hyperlinks are indispensable in the online world to communicate about the existence of something, they are directly related to citizens’ freedom of expression – a fundamental right in the European legal order. It is not clear why the Court has not dealt with this (fundamental) aspect of the case at all.

Second, the CJEU’s judgment contrasts with the German Supreme Court’s judgment in the Paperboy case (dating back to 2003) which concerned the same question but involved a search engine that set hyperlinks to websites with copyright-protected content which had already been made available to the public by the rightholder. In arriving at the conclusion that there was no breach of copyright, the Supreme Court treated hyperlinks as no different to a “reference to a print or to a website in the footnote of a publication” (p. 20). With regard to the ‘act of communication’ the Court unmistakably concluded that the “setting of hyperlinks is not a communication in this sense” (p. 21).

To be clear about the difference between the German Supreme Court and the CJEU: until the Svensson judgment, hyperlinks were beyond the scope of copyright protection in Germany.  The CJEU, however, appears to have decided to place them within that protection, but nevertheless reaches the same result since a hyperlink to a publicly available work does not reach any new audience.

Jakob Kucharczyk is Director in the Brussels office of the Computer & Communications Industry Association.  For the next post in DisCo’s coverage of the
Svensson decision, click here.

European Union

DisCo is dedicated to examining technology and policy at a global scale.  Developments in the European Union play a considerable role in shaping both European and global technology markets.  EU regulations related to copyright, competition, privacy, innovation, and trade all affect the international development of technology and tech markets.