Svensson: Has The CJEU Saved The Internet?

On 13 February 2014, the Court of Justice of the European Union (CJEU) delivered its judgment in Nils Svensson and Others v Retriever Sverige AB, Case C-466/12, a landmark decision about the operation of copyright on the Internet. The CJEU ruled that the owner of a website may use 'hyperlinks' to redirect Internet users to protected works available on other websites without the authorisation of the copyright holder of the linked website, provided that the linked website is 'freely accessible', i.e. can be accessed by anyone using the Internet.


Retriever Sverige operates a website providing a list of clickable links to articles published by other websites. The claimants were journalists who wrote articles for the Göteborgs-Posten news website and whose articles were being linked by the Retriever Sverige website. The claimants argued that Retriever Sverige's hyperlinks constituted an infringement of the claimants' copyright by making a communication to the public without the authors' permission contrary to Article 3 of Directive 2001/29 (the 'InfoSoc Directive').

The case made its way to the Svea Court of Appeal, which stayed the proceedings and referred four questions to the CJEU:

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 the InfoSoc Directive? 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? 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? 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 the InfoSoc Directive?' Judgment

In answer to the first question the CJEU determined that a 'communication to the public' requires both a 'communication' and also a 'public'. The hyperlinks were determined to be 'making available' and were therefore 'an act of communication'. However, the CJEU held that a...

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