The Court of Justice of the European Union (“ECJ”) held that the owner of a website may — without copyright holders’ authorization – redirect internet users (via hyperlinks) to protected works available on another freely accessible website. Case C‑466/12 Nils Svensson and Others v Retriever Sverige AB.
A Swedish website published a list of clickable internet links (“hyperlinks”) to articles published on other websites. The authors of the articles objected that their exclusive right to make their respective works available to the public was infringed by the unauthorized publishing of hyperlinks in the Swedish website. The Swedish court of appeals referred the issue to the ECJ for a preliminary ruling on the interpretation of Article 3(1) of Directive 2001/29/EC on the harmonization of certain aspects of copyright and related rights in the information society, with reference to the hyperlinks. On February 13, 2014, the ECJ held that Article 3(1) did not apply to the case of Swedish website. In fact, the Swedish website was not making the content available to a new public, different from the one chosen by the journalists. Since the newspaper website on which the articles were published was not subject to any restrictive measures (it was in fact freely accessible), the public originally targeted by the journalists was all internet users, which included the users of the Swedish website who “must be deemed to be potential recipients of the initial communication and, therefore, as being part of the public taken into account by the copyright holders when they authorised the initial communication”. Because there is no new public, the authorization of the copyright holders was required. The ECJ noted if the website had made available works whose content was originally protected, then all the users of the Swedish website would have been “new public” and copyright owners’ authorization would have been necessary. In conclusion, the ECJ ruled that “Article 3(1) (…) must be interpreted as meaning 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’, as referred to in that provision”.
With this decision in Europe it is now clear that websites are allowed to redirect internet users, via hyperlinks, to protected works available on other freely accessible website without authorization of the copyright holders. The full text is available at http://eur-lex…
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