Claes Langenius

he long time awaited decision in the Svensson case regarding the complicated issue of hyperlink-

ing was recently given by the Court of Justice of the European Union (“CJEU”). Claes Langenius and Pe-ter Ahlström from the law firm Ham-marskiöld & Co provide in this article their comments on the decision.

For better or worse, Sweden has long been in the forefront of technical inno-vation and the digital copyright discussion. From the positive side, the technical innova-tion has spurred Swed-ish digital online ser-vices like Skype, Spoti-fy and Voddler. On the negative side, innova-tion has unfortunately also spurred ser-vices which are used in direct breach of fundamental copyright principles - two of the most notorious being The Pirate Bay and Swefilmer.com. Luckily, at least in relation to online music services, copyright holders are step by step man-aging to counterattack illegal down-loading of copyrighted material by of-fering coveted and legitimate services,

such as Spotify. Innovation, however, brings about the challenge of novelty. The conflict of laws in the cyberspace remains unsettled in several aspects, whilst the right holders struggling to re-tain control over their protected works, internet users fight for more access in-stead of “roadblocks”.

As the development of digital technol-ogy outruns lawmaking, it is in the case law clarifications are pursued. Therefore,

it is hardly surprising that it is the Swedish courts, Svea Court of Appeal in the case of Svensson and Others v Retriever Sverige AB (C-466/12) and the Supreme Court in the case of C Entertain-

ment AB v Sandberg (C-279/13), that are amongst the first to ask the Court of Justice of the European Union (“CJEU”) the contentious question, whether link-ing to a protected work on the Internet constitutes copyright infringement.

Hyperlinks – the basicsHyperlinks are an intrinsic feature of the Internet establishing interconnect-

T edness between different websites. A hyperlink redirects the user to anoth-er website enabling the user to enjoy third party content. Contrary to a hy-perlink, an embedded link does not re-direct the user from the initial website but instead displays (embeds) the third party content, often video clips, on the initial website. Many website managers, e.g. in the blogosphere, view hyperlinks as praise for the website’s success. Oth-ers have installed technical measures to prevent users from linking to their content or have set up “paywalls”. There has been a growing confusion about the legal nature of a hyperlink.

Hyperlinking validated by the Svens-son case?CJEU has recently rendered its much an-ticipated decision in the Svensson case. CJEU was asked by the Svea Court of Appeal to elucidate the scope of Article 3(1) of the Information Society Direc-tive (the “Directive”), which provides right holders with the exclusive right to authorize or prohibit transmission of their works to the public. In essence, CJEU was asked to explain whether hy-perlinks to freely available content are permitted.

Thinking Before Linking in the EU

The dispute concerned four journalists who wrote and published articles for a major Swedish daily newspaper. Impor-tantly, the articles were also featured on the newspaper’s free to access website. Retriever Sverige AB (“Retriever”), a media monitoring service providing its users with clickable hyperlinks to third party websites, had provided hyperlinks to the articles written by the journalists. The journalists brought action against Retriever claiming that Retriever’s ser-vices amounted to copyright infringe-ment relying on Article 3(1) of the Di-rective.

An act of communication to the pub-lic?CJEU reasoned that a concept of “com-munication to the public” requires both “an act of communication” and “a pub-lic”. As the mere provision of clickable links on Retriever’s website enabled its users to view the articles, irrespective of whether they clicked on the links or not, the links must be considered to be making the works available to the pub-lic and therefore constitutes an act of communication. Further, as regards the prerequisite of “a public”, the CJEU stat-ed that since the content of Retriever’s

claes.langenius@hammarskiold.se +46 8 578 450 32

By Claes Langenius & Peter Ahlström

Peter Ahlströmpeter.ahlstrom@hammarskiold.se +46 8 578 451 17

In practice, before providing a link to a third party website a thorough exami-nation of its content, the intended au-dience and most importantly the right-holder’s authorization is indeed neces-sary – a “think before you link” exercise. It is not unlikely that an increased use of paywalls and other technical restric-tions will emerge as a consequence of the Svensson case.

Even though the decision in the Svens-son case certainly has answered some questions, it has likewise paved way for new ones that, together with other lingering queries, are awaited to be an-swered in C Entertainment as well as in a German case Bestwater Intertna-tional GmbH v Mebes (C-348/13). In C Entertainment, the CJEU will look more closely at embedding pay-per-view material on the linking website. As such embedding technique requires the linking website to circumvent re-strictions on the pay-per-view website it is likely that it constitutes copyright infringement, especially in light of the CJEU’s statements in the Svensson case. Consequently, there are many reasons why thinking should precede the linking.

website was aimed at all potential users of the website, Retriever was making communication to the public.

New public?However, in order for the hyperlinks to be regarded as a communication to the public, the com-munication would have to be directed at a new public, one that was not taken into ac-count by the journal-ists when they had au-thorised the initial online publication. The Court found that as the newspaper website was not subject to any restric-tions (i.e. open and accessible to every-one), the initial communication on the newspaper website targeted all poten-tial internet users. Hence, Retriever did not make the articles available to a new public and so a new authorization from the journalists was not required. CJEU emphasized that this conclusion would not be altered if Retriever had instead “framed” or “embedded” the articles on its website giving the impression that the articles were part of Retriever’s web-site.

When hyperlinking becomes illegal?It is important to note that the CJEU also stated that if a hyperlink is designed to circumvent restrictions put in place by the rightholder or site manager to limit public access to their protected work,

the link will be con-sidered directed at a new public. The CJEU stressed that 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 only to a restricted public of that website, while being accessible on another Internet site without the copy-right holder’s authorization.

In the wake of SvenssonThe clarification that hyperlinking does not constitute copyright infringement as long as it does not reach a new pub-lic is indeed a welcome one. The deci-sion provides some comfort for aggre-gate sites, but should be followed with caution. A too hasty decision to pro-vide a link to third party content can be treacherous as the decision does

not give carte blanche to linking to any content. The work that the hyperlink refers to should be freely available on its initial website. However, CJEU has not defined what constitutes a suffi-cient “restriction” that right holders are to impose in order to block users from linking to their content and activate the “new public- mechanism”.

One may for example ask if linking to a website with a poorly implemented technical restriction would be consid-ered unlawful? Another question is whether terms and conditions on a free to access website can constitute such a restriction by allowing only a cer-tain group of visitors to link, e.g. pri-vate not commercial visitors. One ad-ditional complicated issue is whether the CJEU decision allows for providing a link to an infringing content (e.g. un-authorized copy of a picture) where the authorized content (the same picture) is already being published on another website making the content available to all internet users. Would linking to the infringing content still constitute a communication to a new public?

Claes Langenius, Partner at Hammar-skiöld & Co

Peter Ahlström, Associate at Hammar-skiöld & Co

Hammarskiöld & Co is a leading Swed-ish business law firm with an inter-national approach. The lawyers have broad experience across the range of le-gal issues that companies can expect to confront on the Swedish market. The firm’s core practice focuses on Swed-ish law, but we also offer substantial ex-pertise in advising on and handling the international implications of business law issues. Hammarskiöld & Co’s fo-cus areas are Mergers and Acquisitions, Banking & Finance, EU and Compe-tition law, Dispute Resolution and IP/TMT.

For more information please visit www.hammarskiold.se