30 May, 2014

Ties to Free Content - European Court of Justice Rules on Hyperlinks

Hyperlinking is arguably one of the most important developments in the evolution of the Internet since being introduced by Tim Berners-Lee in 1989, creating what he would call the World Wide Web. Through this content within the newfangled Internet could be connected more fluidly than in its directory system prior to hyperlinking's integration. Arguably it has made the Internet better, easier to use, and more convenient. Although linking in its many forms has been an issue of some dispute in the legal world, one could have imagined it has mostly seen its heyday in the courts. In a rather interesting turn of events, a new case was recently decided by the European Court of Justice based on a case in Sweden, addressing this very topic earlier this year.

The case in question was Svensson v Retriever Sverige AB, concerning a number of Swedish journalists who regularly posted their journalistic content on the Göteborgs-Posten newspaper and on the Göteborgs-Posten website. The defendant in the case, Retriever, offered a service to its clients by gathering and sending them lists of articles on other websites in clickable link form. Although the articles in question were freely available on the newspaper's website for all to view the journalists argued that when the clients were provided the lists of articles, it was not clear to them that these links would lead to content on other websites; in other words, could be lead to believe Retriever provided them with this content. The journalists then sued Retriever for copyright infringement, arguing they had made use of their articles without prior authorization and sought compensation. The case was rejected by the Stockholm District Court (Stockholms tingsrätt) at first instance, and on appeal to the Svea Court of Appeal (Svea hovrätt) deferred the question to the ECJ for further assistance.

What the journalists argued was that Retriever had illegally made their content available to the public under the Swedish Act on Copyright in Literary and Artistic Works (a copy in Swedish can be found here). The ECJ's concern was how this act would be interpreted under Directive 2001/29/EC, more specifically Article 3(1).

The questions posed to the ECJ were (1) whether the provision of a link to another by a third-party, without the authorization of the copyright holder, would constitute a communication to the public under the Directive; (2) would this assessment be affected if the content is freely available to all on the website to which the link refers to; (3) should a distinction be made between the link showcasing the content on its original website, or if the content is shown in such a way to create the impression that it is appearing on the actual website when it is not; and (4) can a Member State give more protection to copyright holders by enabling communication to the public to cover a wider range of acts than is provided under Article 3.

The Swedish courts are not the only Swedes potentially blocking things
Through previous considerations in ITV Broadcasting and Others the ECJ saw that, for there to be a communication to the public under Article 3(1), there has to be "... an ‘act of communication’ of a work and the communication of that work to a ‘public’". The assessment of whether there has been an act of communication has to be done broadly, and with respect to Article 3(1) more directly: "..it is sufficient, in particular, that a work is made available to a public in such a way that the persons forming that public may access it, irrespective of whether they avail themselves of that opportunity". Under the ECJ's judgment the mere provision of links to content would be an act of communication under the Directive, as the content is made readily available to a public through Retriever's service. Whether this communication is done to a public, the ECJ has deemed that "...by the term ‘public’, that provision refers to an indeterminate number of potential recipients and implies, moreover, a fairly large number of persons". Arguably Retrieve's service does offer content to a large, indeterminate number of people, and falls under the Article.

Although the ECJ saw that Retriever's service would therefore be under the definition of Article 3(1), the matter was not that straightforward. The communication has to be done to a 'new' public, one which the copyright holders would not have foreseen the content being communicated to when they authorized that content's communication. As the journalists' articles were already freely available potentially to every Internet user, it would not be possible for them to have not anticipated Retriever's users to not be able to access that content. As such, in the ECJ's decision, no authorization is required under Article 3(1), and Retriever would not infringe the journalists' rights in communicating their works. This would be the same even if the content is displayed as to imply its existence on the original website when it is not, as the content is still very much available to all. The ECJ did specify that should the content be made only available to subscribed users, and the service, such as Retriever's, would circumvent that pay-wall, it would clearly be beyond the anticipation of the copyright holders when authorizing the communication of their works.

The ECJ also rejected the potential of allowing Member States to widen their range of what can be seen as a communication to the public, as it would create uncertainty within the Union as to what would entail communication to the public if every Member State would have a varying degree of protection.

The Svensson decision was very important in how the Internet would function on a much larger scale, and had the potential to restrict its operation within the European Union. If hyperlinks were to have been deemed to infringe copyright in the event that they link to freely available content, it would be much harder for the end-user to find content relevant to their interests or new content altogether, as external links would infringe copyright and be a liability for third-parties. This writer for one is glad the decision allowed for the linking to outside content, as this very blog does so regularly, and would prefer not to be in hot water as a result.

Source: JDSupra

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