EU's Court of Justice: Hyperlinking to Freely Available Contents NOT Considered Copyright Infringement


On 13 February 2014, the Court of Justice of the European Union (CJEU) issued a ruling in Svensson v Retriever Sverige AB, which answered, among others, a key question of whether posting a hyperlink leading to copyrighted contents on another website without the copyright holder's consent constituted an act of communication of the work to the public under Article 3 (1) of the EU's Copyright Directive, which requires its member states to provide authors with the exclusive right to authorize or prohibit any communication to the public of their works.
The initial proceedings of the case was brought before Stockholm District Court by four Swedish journalists, who claimed that Retriever Sverige, a media monitoring company, had infringed their exclusive right of communication to the public of the press articles they wrote for Göteborgs-Posten newspaper by posting hyperlinks leading to the articles on the website of the newspaper.
Upon the appeal by the plaintiffs, the Svea Court of Appeal in Sweden referred the case to CJEU. The court in trial held that the links in the case were lawful as the works had already been communicated to the public by Götesborgs-Posten and were freely accessible, and accordingly "the public" was taken into account by the copyright holders at the time the initial communication was authorised, as such the process did not involve a new public - considered by the court as a core element that would trigger said Article 3(1), and thus no authorisation from the copyright holder was needed.
The decision of CJEU is binding on the EU national courts and tribunals before which the same problem is raised.