Who: Svensson and others (journalists) v Retreiver Sverige
When: 13 February 2014
Where: European Community
Law stated as at: 13 February 2014
On 13 February 2014 the Court of Justice of the European Union (CJEU) handed down an important ruling on the question of whether or not linking from one website to copyright content on another amounts to copyright infringement, even where the actual content is not copied.
The case of Svensson and others v Retreiver Sverige (C-466/12) was referred to the CJEU in 2012 by a Swedish appeal court which asked the CJEU for clarification on a number of issues of EU copyright law. In brief, Mr Svensson and other journalists writing for the Göteborgs-Posten website complained about the activities of Retreiver Sverige (Swedish Retriever). Swedish Retriever operates a website that provides clickable links to articles published on the Göteborgs-Posten and other websites.
The CJEU ruled that a website providing links to copyright-protected content on another site was not, in and of itself, copyright infringement.
A “new public”
The questions before the CJEU revolved around the issues of whether or not simply providing a link to someone else’s copyright protected work (such as a news article) constituted a “communication to the public” which the copyright owner should be allowed to prevent.
Communication to the public by electronic means is one of the specific “restricted acts” which copyright law enables the owner of copyright to prevent third parties from doing. As it was introduced as a new restricted act only in 2001, in response to the rise of the internet, there has been limited case law to date defining what will or will not constitute a “communication to the public”.
The CJEU ruling makes it clear that, while the provision of a link to copyright protected content is a communication to the public, if the original content is made freely available to the public without restriction (e.g. there is no paywall or subscription requirement to enable internet users to view the content) then there is no communication to a new public and, therefore, no infringement. The court’s view is that this analysis is correct regardless of whether or not the internet user is aware they have been redirected to a new website, or if they believe that they are still on the same site.
The emphasis on content reaching a new public, over and above that already authorised (and presumably taken into account in negotiating any contracts for the production and distribution of the content in the first place), echoes the same point being made in several previous cases concerning the transmission of broadcasts over a different channel or through a different technology, to that initially intended by the originator.
The ruling also suggests that if a website provides links to cached copies of content that is no longer available on the original website, then there would be a communication to a new public and therefore infringement, although the court did not dwell on the point. The analogy is nevertheless reasonably clear: the audience for a particular item of content on the internet at one point in time is bound to be different from the audience interested in that piece of content at a later date – if only because more people gain access to the internet year on year – and so the public accessing the cache is, collectively, a new public even if a large proportion is made up of the same users.
But what about the Meltwater case?
It is important to distinguish this ruling from the High Court ruling in the Meltwater case (The Newspaper Licensing Agency Ltd and others v Meltwater Holding BV and others  EWHC 3099 (Ch)).
This was upheld by the Court of Appeal, which found that reproducing the original article’s headline, or a short extract from the original article, in the course of providing a link can constitute copyright infringement. If the link that is being provided is in fact embedded in text such as a headline or other copyright text as a hyperlink, then there may still be infringement.
This is consistent with the CJEU’s seminal decision in Infopaq International A/S v Danske Dagblades Forening ( EUECJ C-5/08), which ruled that 11 words taken from the middle of an online article could be protected by copyright if those 11 words are original in the sense that they constitute the author’s own intellectual creation – a question of fact to be decided by the national court in each case.
Meltwater itself has now been referred to the CJEU by the UK’s Supreme Court, which considers that there is no copyright infringement in viewing a linked article as a result of the exemption from copyright infringement for transient copies provided by Article 5(1) of the Copyright in the Information Society Directive – a different question from that considered in Svensson.
Other intellectual property issues possible with news aggregation
It is also important to note that the CJEU’s decision in Svensson relates only to the discrete questions about copyright law referred to it by the Swedish court. There are other circumstances in news aggregation and similar cases which may give rise to other intellectual property issues, which this ruling does not deal with.
For example, where the original content is presented as framed on the aggregator’s own website, there may be trade mark infringement and /or passing off issues (or, outside of the UK, unfair competition issues) to consider. Also, where a content aggregator scrapes content from the original content publisher’s website, there may be different copyright and / or database infringement issues to consider.
It should also be noted that nothing in this judgement changes the potential liability of the end user for anything that they may do with online content after they have accessed it. Internet users will still require the authorisation of the copyright owner to do with the original content any of the acts restricted by copyright law, including creating copies of it or communicating it to the (or a new) public.
Why this matters:
One consequence of this judgment may be that more news media and other content providers’ sites move to subscription-based models for access to their online content. This does not necessarily imply a paywall, of course: merely requiring users to register for access can set up a consideration and a contractual relationship which is sufficient to define the audience to which communication has been authorised.
Alternatively, if less likely, is the possibility that organisations could experiment with removing content regularly and only retaining fresh content on their website.
If any news aggregator or similar service provides links which somehow circumvent a subscription arrangement or provides links to a cached version of content that is no longer available, they would be making a communication to a new public and therefore be liable for copyright infringement.