Hyperlinks Not A Copyright Infringement, According To The Court Of Justice Of The European Union

Overview

In Svensson v Retriever Sverige AB, the Court of Justice of the European Union (the "CJEU") recently ruled that hyperlinks to freely available Internet content do not amount to a copyright infringement.

The Svensson case involves a dispute between journalists and a media search service company. Svensson, Sjögren, Sahlman and Gadd (the "Journalists") wrote and held copyrights to press articles which were published in the Göteborgs-Posten newspaper and on its website. Retriever Sverige AB ("Retriever") operated a website that provides its clients with hyperlinks to articles published by other websites.

The Journalists brought an action in Stockholm District Court, seeking compensation for the harm they suffered as a result of Retriever's hyperlinks which redirected users to the Journalists' press articles. The Stockholm District Court rejected the Journalists' application, and the Journalists appealed to the Svea Court of Appeal. The Svea Court of Appeal stayed the proceedings and referred the matter to the CJEU.

Discussion

The CJEU interpreted Article 3(1) of Directive 2001/29 of the European Parliament, which states:

Member States shall provide authors with the exclusive right to authorise or prohibit any communication to the public of their works, by wire or wireless means, including the making available to the public of their works in such a way that members of the public may access them from a place and at a time individually chosen by them.

The CJEU interpreted Article 3(1) to mean that every act of communication of a work to the public must be authorized by the copyright holder. In determining whether Retriever communicated the Journalists' articles to the public, the CJEU found that the hyperlinks on the Retriever website were aimed at an indeterminate and fairly large number of recipients. Therefore, Retriever was making a communication to the public.

However, the CJEU went on to hold that in order to be covered by the concept of "communication to the public" within the meaning of Article 3(1), the communication must be directed at a "new public". The CJEU found that the hyperlinked articles provided by Retriever were not communicated to a "new public" because the users of Retriever's website could access the articles directly on the Göteborgs-Posten website. As such, users of Retriever's website were deemed to be potential recipients of the Göteborgs-Posten website and were therefore part of the public taken into account by...