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Of hyperlinks and copyright

It is perfectly permissible for the owner of a website to redirect internet users, via hyperlinks, to protected works available on a freely accessible basis on another site, the Court of Justice of the European Union (CJEU) recently confirmed. He may do this even without the consent of the copyright owner and even though the internet users who click on the link might get the impression that the work is appearing on the site that contains the hyperlink.

EU law provides that authors have the exclusive right to authorise or prohibit any communication to the public of their works.

Press articles written by Swedish journalists are published on a freely accessible basis on the website of the Göteborgs-Posten.

Retriever Sverige, a Swedish company, operates a website that provides its clients with hyperlinks to articles published on other websites, including the site of the Göteborgs-Posten. However, Retriever Sverige did not ask the journalists concerned for authorisation to establish hyperlinks to the published articles. The Swedish Court of Appeal made a preliminary reference to the CJEU requesting guidance as to whether the provision of such links constitutes an act of communication to the public within the meaning of EU law and hence requires the authorisation of the copyright holders.

The CJEU affirmed that the provision of clickable links to protected works constitutes an act of communication since members of the public may access such works, even if they do not make use of such a possibility. The potential users of the site operated by Retriever Sverige could be regarded as a “public” since their number is indeterminate and fairly large.

The Court pointed out, however, that the act of communication must be directed at a new public, that is to say, at a public that was not taken into account by the copyright holders when they provided their authorisation for the initial communication. In the case under examination, the Court concluded that there was no such ‘new public’. Since the works offered on the site of the Göteborgs-Posten were freely accessible, the users of Retriever Sverige’s site should be deemed to be part of the public already taken into account by the journalists at the time when they authorised the publication of the articles on the Göteborgs-Posten. This must be considered to be the case even if the internet users who click on the link get the impression that the work is appearing on Retriever Sverige’s site, whereas in actual fact the articles were posted on Göteborgs-Posten.

Hence, the CJEU concluded that what Retriever Sverige was doing was perfectly legal. It did point out, however, that the situation would have been different should the hyperlinks permit users to circumvent restrictions put in place to restrict public access to subscribers only.

This is because of the fact that in such a scenario, the users would not have been taken into account as potential public by the copyright holders when they authorised the initial communication.

The rights enjoyed by copyright owners are, however, not absolute ones

The owners of works enjoying copyright are afforded protection at law in order to ensure that creativity and innovation do not go unrewarded and hence are stifled to the detriment of society at large. This judgment goes to prove that the rights enjoyed by copyright owners are, however, not absolute ones. Such rights must be balanced against the right of society to enjoy such works once the author has exercised his or her primary right to provide authorisation for their first communication to a public which is taken into consideration by the copyright holder at the time of such authorisation.

mariosa@vellacardona.com

Mariosa Vella Cardona is a freelance legal consultant specialising in European law, competition law, consumer law and intellectual property law.

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