The Court of Justice gave judgment earlier today in Case C-466/12, Svensson v Retriever Sverige AB. The claimants in these proceedings are all journalists who wrote articles published in various newspapers and online. Retriever Sverige operates a website that provides its clients with lists of clickable links to articles published on other websites including links to the journalists’ articles.
Retriever argued that providing internet links to works published on other websites does not constitute copyright infringement even where it is not apparent to the user that he or she has been redirected to another site hosting the article in question. The Swedish Court of Appeal decided to refer a number of questions under the Information Society Directive to the court and in particular the question of whether providing links constituted communication to the public within the meaning of that directive.
The Court of Justice ruled that there is a communication to the public but no copyright infringement because the communication is not made to a ‘new public’ – i.e. one that was not taken into account by the copyright holders when they authorised the initial communication of their articles themselves. Accordingly, as all internet users have had free access to the articles on the newspaper sites there was no ‘new public’ in this case. The position would be different where the hyperlink permits users to circumvent access restrictions put in place on the site on which the protected work appears. This approach to reconciling the previous case law was advocated by the UK Government among others. The court also held that it was not possible for member states to provide wider protection to copyright holders for communication to the public than that provided in the Directive.
The judgment is here.
A press release is here.
Nicholas Saunders acted for the United Kingdom Government, instructed by the Treasury Solicitors.