Case C-466/12, Svensson – hyperlinks and communicating works to the public

Does putting a hyperlink on a website constitute a copyright-relevant ‘communication to the public’ under the EU’s InfoSoc Directive 2001/29?

Facts
Mr Svensson is a journalist. He wrote an article, which was accepted for publication by a Swedish newspaper. It was published in two media: in print, and online via the newspaper’s website.

The defendant in this case is Retriever Sverige AB. Its customers subscribe to this E-commerce company for the access it gives to newspaper articles. Its customers also pay for every article they consult.

Mr Svensson brought a claim in copyright law and sued Retriever for ‘equitable remuneration’. He reckoned Retriever had made his article available to Retriever’s subscribers through the search and alert functions on its website. This fell within the copyright relevant acts of either a communication to the public, or the public performance of a work. Either way, consent was necessary and that had not been granted. For good measure, he added that if the Swedish court would deny his ‘making available to the public’ head of claim, then he asked the court to find for him on the basis that Retriever’s actions constituted some other form of ‘making available’.

In response, Retriever denied any liability to pay equitable remuneration either to Mr Svensson or any of the other journalists named as claimants in the action. Focussing on the technology to its website, the broad line of its argument was that the linking mechanisms did not constitute copyright-relevant acts, thus there was no infringement of copyright law.

More specifically, it pointed to the facts that a Retriever customer had to log-in to Retriever’s website. Once there, a customer would fill in a search term. The customer was subsequently provided with a list of hyperlinks to relevant articles. Customers could then click on any of these hyperlinks. Clicking on a hyperlink caused a new window to be opened on the customer’s computer screen. The text could be viewed inside that new window. It was text that had been retrieved from the websites of third parties, and Retriever’s own website did not contain a copy of the original article.

Questions Referred
According to the Curia website, the Svea hovrätt has asked:

1. 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 Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society?

2. 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?

3. 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?

4. 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 Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society?

Comment
The proper scope of the ‘communication to the public’ concept in the EC’s InfoSoc Directive, and its subsequent elaboration in the case law of the CJEU, is heavily contested.

One source of the problem is understanding the CJEU’s reasoning in Case C-306/05, Sociedad General de Autores y Editores de España (SGAE) v Rafael Hoteles SA. On its face, this case was about a hotelier pumping broadcast signals around a network inside a hotel.

A second problem is how the CJEU has developed its case law in the intervening six years and has introduced more legal reasoning telling the judges in national courts how to establish a communication to the public (Case C-135/10 Società Consortile Fonografici (SCF) v Marco Del Corso, about a radio in a dentist’s waiting room that does not communicate works to the public; but Case C-162/10, Phonographic Performance (Ireland) Limited v Ireland and Attorney General, about televisions or radios in hotel rooms which do communicate works to the public).

A third problem is how the CJEU has applied its ‘Rafael Hoteles’ reasoning to quite disparate forms of technology. For example, a GUI (Graphic User Interface) makes it easier to operate a computer. The CJEU relied on ‘Rafael Hoteles’ to stop a GUI broadcast on television from falling within the concept of a ‘communication to the public’ (Case C-393/09, Bezpecnostní softwarová asociace).

Equally, the reasoning in ‘Rafael Hoteles’ has been applied to make satellite packagers potentially liable for communicating works to the public (Case C-431/09, Airfield and Canal Digitaal v Belgische Vereniging van Auteurs, Componisten en Uitgevers CVBA (Sabam), and Case C-432/09, Airfield NV v Agicoa Belgium BVBA).

Whether, and to what extent, the reasoning in ‘Rafael Hoteles’ on a communication to the public applies to the internet remains unclear. The legal reasoning used in ‘Airfield’ reveals the Court had expressly limited its reasoning to satellite package providers. The inference can be drawn that the principles of ‘Rafael Hoteles’ and ‘Airfield’ do not yet apply to other intermediary companies, such as ISPs or platforms, that currently also distribute television programmes. See further, Airfield, Intermediaries and the Rescue of EU Copyright Law.

Inference aside, the CJEU’s unclear legal reasoning, potentially contradictory refinements, and partial application to new technology, are combining to form a large problem for national courts: some judges confess they do not know how to apply the CJEU’s case law. They have felt obliged to make yet more references to the CJEU on what constitutes a communication to the public (see for example, Case C-607/11, ITV Broadcasting; Case C-416/12, Wikom Elektrik – can a broadcasting company stop a communication to the public by cable of their broadcast?; and Case C-351/12, OSA – EU copyright law checks in for a long stay at a health spa).

Sanoma and Playboy v GS Media
In light of the legal uncertainty in EU law, it is quite incredible then that a Dutch District Court has apparently had no difficulty whatsoever in applying the CJEU’s case law on a communication to the public to the phenomenon of hyperlinks. Indeed, not only did the Dutch court claim to apply EU case law to hyperlinks but it also went on to make a company liable for a communication to the public when that company put a hyperlink on its website.

Since the Dutch court’s judgment deals with hyperlinking in the context of a communication to the public, and this too is behind the Swedish court’s reference to the CJEU in Svensson, the Dutch case of Sanoma and Playboy v GS Media could be relevant.

The facts leading up to the Dutch case are these. The defendant ran (and runs) a website known as Geenstijl. It placed a hyperlink on its website that directed its users to a website in Australia. The Australian website had a set of copyright-protected photographs on it: a series of nudes of a person who appears on Dutch television. The Dutch court held that the placing of the hyperlink on the Dutch website constituted the Dutch copyright-relevant act of publication, interpreted in light of the concept of ‘communication to the public’ that is found in the EC’s InfoSoc Directive.

The District Court states baldly: ‘From the case law of the CJEU, it appears that the assessment of whether there is a communication to the public must take into account the circumstances of the case. This case law mentions a number of criteria that can play a role. Of particular importance is whether there is: an intervention, a (new) public, and the intention to make a profit.’

The Dutch court went on to ask: was there an intentional intervention? The court started off by making the observation that ‘the placing of a hyperlink which refers to a location on the internet where a specific work is made available to the public is, in principle, not an independent act of publication. The factual making available to the public occurs on the website to which the hyperlink refers.’ However, in this case, the website containing the photographs was not indexed by search engines, and the court believed that in order to be able to see the pictures, internet-users would have had to have typed in the specific URL.

Thus without the intervention of the defendants placing the hyperlink on its website, the court believed that the public would not have had access to the photographs. In this context, the court also noted that the defendant’s website attracted some 230 000 visitors a day so placing the hyperlink on its website had ensured that the public knew about the photographs even before they were published in the claimant’s magazine, Playboy.

The Dutch court also went on to find that the defendant had intended to make this intervention. The court noted that the hyperlink was displayed as, ‘H-E-R-E’. The word was preceded by a sexually provocative caption (the court quotes it in full but this is not repeated here to save the blushes of the reader). The Dutch court also noted that the hyperlink and caption were located under the heading: ‘Fucking leaked! Pictures of [X] naked’. From both the caption and the heading, the Court drew the inference that the defendant had intended to make the ‘intervention’.

In so far as a ‘new’ public was concerned, the Amsterdam District Court took as its starting point the fact that only a very small audience had known about the series of photographs (only a couple of photographs of the series had been published) so the placing of the hyperlink enabled quite a large and indeterminate circle of people to know about the series of photographs. According to the District Court, this was a public other than the one which the copyright holder had in mind when giving its consent for the publication of the photo story.

And in respect of the profit motive, the District Court considered that the placing of the link to the series of photographs was unmistakably done with the intention of attracting visitors to its website and/or keeping its regular visitors. By the defendant’s own admission, the judges noted the defendant had a commercial interest in serving up its readers a broad range of ‘rich and enriching’ reports. That the placing of the hyperlink had influenced visitor numbers could be inferred from the defendant’s ‘TOP 50 topics of 2011’, which listed as the most-viewed topic in 2011, the heading: ‘Fucking leaked!’. The Dutch court held that the defendant’s placing of the hyperlink on its website was therefore done with the intention of making a profit.

This Dutch judgment is pretty lamentable not least because the reasoning of the 3-judge Amsterdam District Court is so vague. The District Court claims to have relied on CJEU case law but it has failed to mention what CJEU case law, if any, it was dealing with at any particular point in its judgment – let alone indicate which individual paragraphs of the CJEU’s judgments it was applying to the various points in the case before it.

Nevertheless, the Dutch judgment is one of the few to date that responds to the phenomenon of hyperlinking and it has done so in the context of a communication to the public. As such, it remains to be seen whether passages from it will be repeated by the CJEU in its reasoning to Case C-466/12, Svensson.

Update
The UK’s Supreme Court has recently heard a case about hyperlinks and made a reference to the CJEU.

See further, Case C-279/13, C More Entertainment – skating on thin ice with embedded links in EU copyright law.

Update – 18 July 2013
Another reference has been made to the CJEU that discusses hyperlinks and embedding. See further, Case C-348/13, BestWater International – objecting to the embedding of videos.

Update – 8 October 2013
The Svensson case is to be heard by the Fourth Chamber on 7 November 2013.

Update – 21 November 2013
The decision of the Amsterdam District Court in Sanoma and Playboy v GS Media was appealed. The Amsterdam Court of Appeal has now overturned the District Court’s judgment. My unofficial translation of the rather telegraphic reasoning of the Amsterdam Court of Appeal at paragraph 2.4.4 reads as follows:

‘A person who puts a copyright protected work onto the internet in such a way that it is made accessible to the public (and thereby makes a communication to the public within the meaning of the InfoSoc Directive), is the person who makes this work available to the public, and thus publishes it. A hyperlink referring to a work published at another location is nothing much other than a footnote in either a book or an article in a periodical that refers to a different work which has already been published. In that case, giving a hyperlink is in principle not an independent means of publication or intervention.’

A little further on in the judgment and the Amsterdam Court of Appeal decides at paragraph 2.4.7:
‘Since it has not been established that the photographs on the [Australian website] have remained completely private, this court must proceed on the basis that a third party has published the pictures by placing them on [the Australian website], and that GS Media, although to a certain degree facilitating access to those photographs […], has not provided the public with a new channel of access, and thus has not intervened for the purposes of the CJEU’s case law….’

And later, the Amsterdam Court of Appeal deals with the point that the photographs had been published by an unknown third party, whereby the third party infringed the copyrights of the photographer, and the portrait rights and privacy of the television presenter – all of which was tortious. Here the court reasons:

‘GS Media knew that the publication of the photographs by the aforementioned third party was tortious. Not only had it could have known this by having received the photographs from someone who was obviously using a fictitious name, but Sanoma had already indicated to GS Media that even before the publication of the article with the hyperlink, the photographs had been obtained by illegal means, and, shortly after the hyperlink had been placed, Sanoma had demanded that the hyperlink be removed – something which GS Media had refused to do. Even after the [Australian website] had complied with Sanoma’s demands, GS Media had placed a new link and then allowed its readers to place new links. There is nothing to suggest that without the help and support of GS Media, its audience would have been able to find the photographs by any simple means.’

The three judges in the Amsterdam Court of Appeal decided that placing the hyperlink was to a great degree facilitative and moreover the inclusion of the hyperlinks in the texts of the articles could only only be understood as encouraging the audience of the GS Media’s website to look at the illegally placed photographs. Seen in the round, GS Media had acted tortiously against Sanoma.

Comment
The Dutch Court of Appeal has overturned the decision of the District Court. Once again, the Dutch court judges talk expressly of ‘CJEU case law’ but they provide no indication as to either the authorities they have in mind or the paragraphs they are relying on. Equally, they do not discuss any Dutch, European, or international legal literature about hyperlinks and copyright law’s responses. There is also no acknowledgement that there are currently three or four ‘hyperlinking/embedding’ references pending before the CJEU.

The style of legal reasoning of the Dutch judges is in stark contrast to that used by the High Court of England and Wales in cases such as Paramount Home Entertainment International [2013] EWHC 3479(Ch), 13 November 2013 in which: the CJEU’s 9 ‘communication to the public’ judgments are mentioned; legal literature is considered; doubts are expressed; firm but polite criticism is made of the procedural choices taken by the CJEU in the hyperlinks case of Svensson; and the judge tries to apply the law as it stands to the case before him.

Update – 28 January 2014
The Curia website indicates that Advocate General Sharpston was involved in the Svensson reference. However, there is no indication that any Opinion was published. In any event, the judgment of the Fourth Chamber of the CJEU is due to be delivered on 13 February 2014.

Update – 5 August 2014
Judgment
A version of the CJEU’s judgment in Case C-466/12, Svensson ECLI:EU:C:2014:76 is reproduced below. The reproduction is not authentic. Only the versions of the document published in the ‘Reports of Cases’ or the ‘Official Journal of the European Union’ are authentic. The source of the reproduction is the Eur-Lex Europa web site. The information on that site is subject to a disclaimer and a copyright notice.

JUDGMENT OF THE COURT (Fourth Chamber)

13 February 2014 ()

(Reference for a preliminary ruling – Approximation of laws – Copyright and related rights – Directive 2001/29/EC – Information society – Harmonisation of certain aspects of copyright and related rights – Article 3(1) – Communication to the public – Meaning – Internet links (‘clickable links’) giving access to protected works)

In Case C‑466/12,

REQUEST for a preliminary ruling under Article 267 TFEU from the Svea hovrätt (Sweden), made by decision of 18 September 2012, received at the Court on 18 October 2012, in the proceedings

Nils Svensson,

Sten Sjögren,

Madelaine Sahlman,

Pia Gadd

Retriever Sverige AB,

THE COURT (Fourth Chamber),

composed of L. Bay Larsen, President of the Chamber, M. Safjan, J. Malenovský (Rapporteur), A. Prechal and S. Rodin, Judges,

Advocate General: E. Sharpston,

Registrar: C. Strömholm, Administrator,

having regard to the written procedure and further to the hearing on 7 November 2013,

after considering the observations submitted on behalf of:

– Mr Svensson, Mr Sjögren and Ms Sahlman, by O. Wilöf, förbundsjurist,

– Ms Gadd, by R. Gómez Cabaleiro, abogado, and M. Wadsted, advokat,

– Retriever Sverige AB, by J. Åberg, M. Bruder and C. Rockström, advokater,

– the French Government, by D. Colas, F.-X. Bréchot and B. Beaupère-Manokha, acting as Agents,

– the Italian Government, by G. Palmieri, acting as Agent, and by S. Fiorentino, avvocato dello Stato,

– the United Kingdom Government, by J. Beeko, acting as Agent, and by N. Saunders, Barrister,

– the European Commission, by J. Samnadda and J. Enegren, acting as Agents,

having decided, after hearing the Advocate General, to proceed to judgment without an Opinion,

gives the following

Judgment

1 This request for a preliminary ruling concerns the interpretation of Article 3(1) of Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society (OJ 2001 L 167, p. 10).

2 The request has been made in proceedings between Mr Svensson, Mr Sjögren, Ms Sahlman and Ms Gadd, the applicants in the main proceedings, and Retriever Sverige AB (‘Retriever Sverige’) concerning compensation allegedly payable to them for the harm they consider they have suffered as a result of the inclusion on that company’s website of clickable Internet links (hyperlinks) redirecting users to press articles in which the applicants hold the copyright.

Legal context

International law

The WIPO Copyright Treaty

3 The World Intellectual Property Organisation (WIPO) adopted the WIPO Copyright Treaty (‘the WIPO Copyright Treaty’) in Geneva on 20 December 1996. It was approved on behalf of the European Community by Council Decision 2000/278/EC of 16 March 2000 (OJ 2000 L 89, p. 6).

4 Article 1(4) of the WIPO Copyright Treaty provides that the contracting parties are to comply with Articles 1 to 21 of the Convention for the Protection of Literary and Artistic Works, signed at Berne on 9 September 1886 (Paris Act of 24 July 1971), as amended on 28 September 1979 (‘the Berne Convention’).

The Berne Convention

5 Article 20 of the Berne Convention, entitled ‘Special Agreements Among Countries of the Union’, states:

‘The Governments of the countries of the Union reserve the right to enter into special agreements among themselves, in so far as such agreements grant to authors more extensive rights than those granted by the Convention, or contain other provisions not contrary to this Convention. The provisions of existing agreements which satisfy these conditions shall remain applicable.’

European Union law

6 Recitals 1, 4, 6, 7, 9 and 19 in the preamble to Directive 2001/29 state:

‘(1) The Treaty provides for the establishment of an internal market and the institution of a system ensuring that competition in the internal market is not distorted. Harmonisation of the laws of the Member States on copyright and related rights contributes to the achievement of these objectives.

…

(4) A harmonised legal framework on copyright and related rights, through increased legal certainty and while providing for a high level of protection of intellectual property, will foster substantial investment in creativity and innovation, including network infrastructure, and lead in turn to growth and increased competitiveness of European industry, both in the area of content provision and information technology and more generally across a wide range of industrial and cultural sectors. …

…

(6) Without harmonisation at Community level, legislative activities at national level which have already been initiated in a number of Member States in order to respond to the technological challenges might result in significant differences in protection and thereby in restrictions on the free movement of services and products incorporating, or based on, intellectual property, leading to a refragmentation of the internal market and legislative inconsistency. The impact of such legislative differences and uncertainties will become more significant with the further development of the information society, which has already greatly increased transborder exploitation of intellectual property. This development will and should further increase. Significant legal differences and uncertainties in protection may hinder economies of scale for new products and services containing copyright and related rights.

(7) The Community legal framework for the protection of copyright and related rights must, therefore, also be adapted and supplemented as far as is necessary for the smooth functioning of the internal market. To that end, those national provisions on copyright and related rights which vary considerably from one Member State to another or which cause legal uncertainties hindering the smooth functioning of the internal market and the proper development of the information society in Europe should be adjusted, and inconsistent national responses to the technological developments should be avoided, whilst differences not adversely affecting the functioning of the internal market need not be removed or prevented.

…

(9) Any harmonisation of copyright and related rights must take as a basis a high level of protection, since such rights are crucial to intellectual creation. Their protection helps to ensure the maintenance and development of creativity in the interests of authors, performers, producers, consumers, culture, industry and the public at large. …

(19) The moral rights of rightholders should be exercised according to the legislation of the Member States and the provisions of the Berne Convention …[,] the WIPO Copyright Treaty and of the WIPO Performances and Phonograms Treaty. …’

7 Article 3 of Directive 2001/29 provides:

‘1. Member States shall provide authors with the exclusive right to authorise or prohibit any communication to the public of their works, by wire or wireless means, including the making available to the public of their works in such a way that members of the public may access them from a place and at a time individually chosen by them.

…

3. The rights referred to in paragraphs 1 and 2 shall not be exhausted by any act of communication to the public or making available to the public as set out in this Article.’

The dispute in the main proceedings and the questions referred for a preliminary ruling

8 The applicants in the main proceedings, all journalists, wrote press articles that were published in the Göteborgs-Posten newspaper and on the Göteborgs-Posten website. Retriever Sverige operates a website that provides its clients, according to their needs, with lists of clickable Internet links to articles published by other websites. It is common ground between the parties that those articles were freely accessible on the Göteborgs-Posten newspaper site. According to the applicants in the main proceedings, if a client clicks on one of those links, it is not apparent to him that he has been redirected to another site in order to access the work in which he is interested. By contrast, according to Retriever Sverige, it is clear to the client that, when he clicks on one of those links, he is redirected to another site.

9 The applicants in the main proceedings brought an action against Retriever Sverige before the Stockholms tingsrätt (Stockholm District Court) in order to obtain compensation on the ground that that company had made use, without their authorisation, of certain articles by them, by making them available to its clients.

10 By judgment of 11 June 2010, the Stockholms tingsrätt rejected their application. The applicants in the main proceedings then brought an appeal against that judgment before the Svea hovrätt (Svea Court of Appeal).

11 Before that court, the applicants in the main proceedings claimed, inter alia, that Retriever Sverige had infringed their exclusive right to make their respective works available to the public, in that as a result of the services offered on its website, Retriever Sverige’s clients had access to the applicants’ works.

12 Retriever Sverige contends, in defence, that the provision of lists of Internet links to works communicated to the public on other websites does not constitute an act liable to affect the copyright in those works. Retriever Sverige also contends that it did not carry out any transmission of any protected work; its action is limited to indicating to its clients the websites on which the works that are of interest to them are to be found.

13 In those circumstances, the Svea hovrätt decided to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling:

‘(1) 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 Directive [2001/29]?

(2) 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?

(3) 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?

(4) 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 Directive 2001/29?’

Consideration of the questions referred

The first three questions

14 By its first three questions, which it is appropriate to examine together, the referring court asks, in essence, whether Article 3(1) of Directive 2001/29 must be interpreted as meaning that the provision, on a website, of clickable links to protected works available on another website constitutes an act of communication to the public as referred to in that provision, where, on that other site, the works concerned are freely accessible.

15 In this connection, it follows from Article 3(1) of Directive 2001/29 that every act of communication of a work to the public has to be authorised by the copyright holder.

16 It is thus apparent from that provision that the concept of communication to the public includes two cumulative criteria, namely, an ‘act of communication’ of a work and the communication of that work to a ‘public’ (see, to that effect, Case C‑607/11 ITV Broadcasting and Others [2013] ECR, paragraphs 21 and 31).

17 As regards the first of those criteria, that is, the existence of an ‘act of communication’, this must be construed broadly (see, to that effect, Joined Cases C‑403/08 and C‑429/08 Football Association Premier League and Others [2011] ECR I‑9083, paragraph 193), in order to ensure, in accordance with, inter alia, recitals 4 and 9 in the preamble to Directive 2001/29, a high level of protection for copyright holders.

18 In the circumstances of this case, it must be observed that the provision, on a website, of clickable links to protected works published without any access restrictions on another site, affords users of the first site direct access to those works.

19 As is apparent from Article 3(1) of Directive 2001/29, for there to be an ‘act of communication’, 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 (see, by analogy, Case C‑306/05 SGAE [2006] ECR I‑11519, paragraph 43).

20 It follows that, in circumstances such as those in the case in the main proceedings, the provision of clickable links to protected works must be considered to be ‘making available’ and, therefore, an ‘act of communication’, within the meaning of that provision.

21 So far as concerns the second of the abovementioned criteria, that is, that the protected work must in fact be communicated to a ‘public’, it follows from Article 3(1) of Directive 2001/29 that, by the term ‘public’, that provision refers to an indeterminate number of potential recipients and implies, moreover, a fairly large number of persons (SGAE, paragraphs 37 and 38, and ITV Broadcasting and Others, paragraph 32).

22 An act of communication such as that made by the manager of a website by means of clickable links is aimed at all potential users of the site managed by that person, that is to say, an indeterminate and fairly large number of recipients.

23 In those circumstances, it must be held that the manager is making a communication to a public.

24 None the less, according to settled case-law, in order to be covered by the concept of ‘communication to the public’, within the meaning of Article 3(1) of Directive 2001/29, a communication, such as that at issue in the main proceedings, concerning the same works as those covered by the initial communication and made, as in the case of the initial communication, on the Internet, and therefore by the same technical means, must also 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 authorised the initial communication to the public (see, by analogy, SGAE, paragraphs 40 and 42; order of 18 March 2010 in Case C‑136/09 Organismos Sillogikis Diacheirisis Dimiourgon Theatrikon kai Optikoakoustikon Ergon, paragraph 38; and ITV Broadcasting and Others, paragraph 39).

25 In the circumstances of this case, it must be observed that making available the works concerned by means of a clickable link, such as that in the main proceedings, does not lead to the works in question being communicated to a new public.

26 The public targeted by the initial communication consisted of all potential visitors to the site concerned, since, given that access to the works on that site was not subject to any restrictive measures, all Internet users could therefore have free access to them.

27 In those circumstances, it must be held that, where all the users of another site to whom the works at issue have been communicated by means of a clickable link could access those works directly on the site on which they were initially communicated, without the involvement of the manager of that other site, the users of the site managed by the latter 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.

28 Therefore, since there is no new public, the authorisation of the copyright holders is not required for a communication to the public such as that in the main proceedings.

29 Such a finding cannot be called in question were the referring court to find, although this is not clear from the documents before the Court, that when Internet users click on the link at issue, the work appears in such a way as to give the impression that it is appearing on the site on which that link is found, whereas in fact that work comes from another site.

30 That additional circumstance in no way alters the conclusion that the provision on a site of a clickable link to a protected work published and freely accessible on another site has the effect of making that work available to users of the first site and that it therefore constitutes a communication to the public. However, since there is no new public, the authorisation of the copyright holders is in any event not required for such a communication to the public.

31 On the other hand, where a clickable link makes it possible for users of the site on which that link appears to circumvent restrictions put in place by the site on which the protected work appears in order to restrict public access to that work to the latter site’s subscribers only, and the link accordingly constitutes an intervention without which those users would not be able to access the works transmitted, all those users must be deemed to be a new public, which was not taken into account by the copyright holders when they authorised the initial communication, and accordingly the holders’ authorisation is required for such a communication to the public. This is the case, in particular, where the work is no longer available to the public on the site on which it was initially communicated or where it is henceforth available on that site only to a restricted public, while being accessible on another Internet site without the copyright holders’ authorisation.

32 In those circumstances, the answer to the first three questions referred is that Article 3(1) of Directive 2001/29 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.

The fourth question

33 By its fourth question, the referring court asks, in essence, whether Article 3(1) of Directive 2001/29 must be interpreted as precluding a Member State from giving wider protection to copyright holders by laying down that the concept of communication to the public includes a wider range of activities than those referred to in that provision.

34 In this connection, it is apparent, in particular, from recitals 1, 6 and 7 in the preamble to Directive 2001/29 that the objectives of the directive are, inter alia, to remedy the legislative differences and legal uncertainty that exist in relation to copyright protection. Acceptance of the proposition that a Member State may give wider protection to copyright holders by laying down that the concept of communication to the public also includes activities other than those referred to in Article 3(1) of Directive 2001/29 would have the effect of creating legislative differences and thus, for third parties, legal uncertainty.

35 Consequently, the objective pursued by Directive 2001/29 would inevitably be undermined if the concept of communication to the public were to be construed in different Member States as including a wider range of activities than those referred to in Article 3(1) of that directive.

36 It is true that recital 7 in the preamble to the directive indicates that the directive does not have the objective of removing or preventing differences that do not adversely affect the functioning of the internal market. Nevertheless, it must be observed that, if the Member States were to be afforded the possibility of laying down that the concept of communication to the public includes a wider range of activities than those referred to in Article 3(1) of the directive, the functioning of the internal market would be bound to be adversely affected.

37 It follows that Article 3(1) of Directive 2001/29 cannot be construed as allowing Member States to give wider protection to copyright holders by laying down that the concept of communication to the public includes a wider range of activities than those referred to in that provision.

38 Such a conclusion is not affected by the fact, highlighted by the applicants in the main proceedings in their written observations, that Article 20 of the Berne Convention stipulates that the signatory countries may enter into ‘special agreements’ among themselves with a view to granting copyright holders more extensive rights than those laid down in that Convention.

39 In this connection, suffice it to recall that, when an agreement allows, but does not require, a Member State to adopt a measure which appears to be contrary to Union law, the Member State must refrain from adopting such a measure (Case C‑277/10 Luksan [2012] ECR, paragraph 62).

40 Since the objective of Directive 2001/29 would inevitably be undermined if the concept of communication to the public were construed as including a wider range of activities than those referred to in Article 3(1) of that directive, a Member State must refrain from exercising the right granted to it by Article 20 of the Berne Convention.

41 Therefore, the answer to the fourth question is that Article 3(1) of Directive 2001/29 must be interpreted as precluding a Member State from giving wider protection to copyright holders by laying down that the concept of communication to the public includes a wider range of activities than those referred to in that provision.

Costs

42 Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the national court, the decision on costs is a matter for that court. Costs incurred in submitting observations to the Court, other than the costs of those parties, are not recoverable.

On those grounds, the Court (Fourth Chamber) hereby rules:

1. Article 3(1) of Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society, 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.

2. Article 3(1) of Directive 2001/29 must be interpreted as precluding a Member State from giving wider protection to copyright holders by laying down that the concept of communication to the public includes a wider range of activities than those referred to in that provision.

[Signatures]

Language of the case: Swedish.

EU Law Radar Links to Later CJEU Citations

Update – 11 October 2014
The CJEU’s judgment in Case C-466/12, Svensson ECLI:EU:C:2014:76 is being discussed in the Dutch Supreme Court, which is currently deciding the appeal of the above-mentioned Dutch case of Sanoma and Playboy v GS Media.

Update – 14 January 2015
An Advocate General of the Dutch Supreme Court has advised that court to make a reference to the CJEU about how to apply EU law in the Sanoma and Playboy v GS Media case.

Update – 27 January 2015
When EU Law Radar first covered the above-mentioned Sanoma v. GS Media case two years ago, the name of the Dutch person was indicated as ‘[X]’. Dutch readers would have known who was meant since the person’s name was listed at the start of each of the Dutch courts’ judgments. In light of the fact that X’s name is now being mentioned on English-language websites, readers may find it helpful to know that the person in the ‘hyperleaked hyperlinked’ photographs was a Ms Dekker, who was about 19 years old when the photographs were taken.

Update – 3 April 2015
Today the Dutch Supreme Court announced that it would make a preliminary reference to the CJEU in the Sanoma v. GS Media case mentioned above.

Update – 4 April 2015
My unofficial translation of the questions referred by the Dutch Supreme Court in the Sanoma Playboy v. GS Media case reads as follows:

1a. For the purposes of Article 3(1) of Directive 2001/29, is there a ‘communication to the public’ when someone other than the copyright holder uses a hyperlink on his website to refer to a third party’s website that is accessible to the general public using the internet, and upon which the work is made available without the consent of the right holder?

1b. Does the answer differ according to whether the work has not otherwise already been communicated to the public with the consent of the right holder?

1c. Does it matter whether the ‘hyperlinker’ is, or should have been, aware of the right holder’s lack of consent about the placing of the work on the third party’s website mentioned in Question 1a; and, if so, of the circumstance that the work has not otherwise already been communicated to the public with the consent of the right holder?

2a. If the answer to Question 1a is in the negative, then is there still a communication to the public (or can there be) if the website to which the hyperlink refers – and thus to the work – can admittedly, albeit not easily, be found by the general public using the internet so that the placing of the hyperlink greatly facilitates the finding of the work?

2b. When answering Question 2a is it important that the ‘hyperlinker’ is, or should have been, aware of the fact that the website to which the hyperlink refers cannot be found easily by the general public using the internet?

3. Are there any other circumstances which must also be taken into account when determining whether there is a communication to the public where a hyperlink provides access to a work which has not already been communicated to the public with the consent of the right holder?

Update – 15 April 2015
The Dutch Supreme Court’s ‘Sanoma v GS Media’ reference mentioning the CJEU’s ‘Svensson’ judgment has now been docketed by the CJEU. See further, Case C-160/15, GS Media – Porn! Hyperlinked and Hyperleaked!

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