The Court of Justice of the EU gave its judgment in the case of Svensson this morning. It has been keenly awaited because it addresses the question fundamental to all internet activity: whether linking infringes copyright. The main question posed to the Court was whether linking is an “act of communication to the public”, and therefore a publication of the work (to which the link is provided) which would require the permission of the copyright holder.
The Court has decided:
The provision of a clickable link to works freely available on another website does not constitute an “act of communication to the public”, within the meaning of the term in the Copyright Directive .(emphasis added)
Does this liberate all links from the shackles of copyright? Are those vindicated who say that linking is simply pointing to the availability of something, and not engaging in a use that can infringe copyright?
Not entirely. Note the words “freely available”. The basis for the decision is that linking is an “act of communication” but to be an “act of communication to the public” it must be addressed at a “new public”, and not a public already taken into consideration in the initial communication. So, if the linking simply involves enabling people to access a work that they could in any event access freely by consulting the original site where the work is published, there is no new public, no act of communication to the public and therefore no need for the permission of the copyright holder.
On the other hand, the Court says, where a clickable link enables a user to circumvent restrictions put in place to limit public access to “subscribers only”, users who access via a link which circumvents the restrictions do constitute a new public not taken into account by the right holder, and authorisation is needed.
The decision is very clear, as far as it goes, but questions spring to mind. What kind of “restrictions” must apply? What does the Court mean by “subscribers”? What is the situation, for example, when the right holder makes works available without a technological access control, but subject nevertheless to terms of use of the website which prohibit linking, or permits access to “subscribers” without payment of a fee? The Court refers to “an intervention” (by the entity providing the link) “without which those users” (those who access via the link) “would not be able to access the works transmitted”. This seems to be the key sentence, which we will have to spend (many enjoyable hours) haggling over.
