Marco Bellezza, Senior Associate Portolano Cavallo Studio legale and an AnOx 2013 Participant, outlines the Court of Justice of European Union’s (CJEU) recent ruling on the Svensson case concerning “communication to the public” and copyright law.
On February 13th, the Court of Justice of European Union (CJEU) released its judgment on case C-466/12, popularly known as the Svensson case. The case concerned extending the notion of “communication to the public” as provided by EU copyright law, Article 3, paragraph 1 Directive 2001/29/EC “On the harmonization of certain aspects of copyright and related rights in the information society.”
According to this provision, “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”.
This case was brought to the CJEU following a Swedish litigation involving journalists and the owners of a website which provided visitors with links to the journalists’ articles that were published on freely accessible newspapers’ websites. The journalists sought compensation from the website owners claiming that the website owners infringed on their exclusive right to make their articles available to the public by providing the aforementioned links on the website.
The national Swedish Court decided to refer four questions to the CJEU for preliminary ruling. The questions proposed to the European Court involved limits and boundaries to the protection of authors’ exclusive right to communicate their works to the public, as outlined in Directive 2001/29/EC, vis-à-vis the provision of links on the internet. The questions included:
1) Does providing a clickable link to protected works constitute a communication to the public within the meaning of the Directive 2001/29/EC?
2) Is the answer to question one in any way affected if the clickable link directs users to a free website or a website where the access is restricted?
3) In answering question one, should any distinction be drawn between cases where the protected work is shown after a click on another website and cases where such work is shown in a way that gives the impression that it is on the original website (i.e. framing)?
4) Is it possible for Member States to provide the authors’ exclusive right with a wider protection than the one provided by the Directive? Regarding question one, as clarified in the past by the CJEU, 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’” (paragraph 16 of the decision). According to the CJEU’s interpretation, providing a clickable link to protected work falls within an ‘act of communication.’ Likewise, a website manager providing the clickable link is making a ‘communication to the public’ as there is an act of communication to an indeterminate number of potential recipients.
However, to provide the authors or rights holders with an exclusive right to authorize communication of their work, it is necessary that the public being communicated to is a ‘new public’ in respect to the public originally targeted by the right holders. In short, the rights holders’ authorization is not required when the relevant act of communication to the public, such as providing a clickable link to protected works, does not target the same public as the initial communication. The CJEU therefore ruled that since the journalists published their articles on the internet, and the articles were accessible for free, the ‘public’ targeted by the website manager who provided the clickable links was the same public initially targeted by the authors.
Responding to the second question, the CJEU stressed that the rights holder’s authorization is always required when access to the relevant contents is protected by means of technological measures or when the relevant content is no longer accessible on the website where the communication commenced. In those cases, indeed it is arguable that the provision of the clickable link is targeted to a ‘new public’ than the one considered by the subject who made the initial communication.
With this focus on the target public, in answering question three, the CJEU decided that there is no distinction between cases where the protected work is shown after the client is redirected to another website and cases where it is not clear that the client is being redirected if the targeted ‘public’ is the same in both accounts.
In regards to the fourth question, the European Court recalled that a key aim of Directive 2001/29/EC is to, “[…] remedy the legislative differences and legal uncertainty that exist [among Member States] in relation to copyright protection.” From this perspective, allowing a Member State to provide a wider protection to right holders by extending the concept of ‘communication to the public,’ would conflict with the aims of the Directive by increasing the differences between national laws. This would adversely impact the functioning of the internal European digital market, as a functioning market requires that all Member States ensure the same level of intellectual property protections.
This CJEU ruling maintains of a certain degree of Internet openness at the EU level, allowing linking to free websites without the relevant rights holder’s prior permission. The ruling may also lead rights holders to make different business decisions in relation to their content, such as putting articles behind a paywall or under registration to a relevant website. Most importantly, this decision forms an important precedent in CJEU case law and will influence the ongoing debate about the boundaries of the exclusive rights granted by EU copyright law in the digital age. In the upcoming months, the CJEU is expected to decide similar cases including the C-More case (C-270/13) (which will likely be dismissed due to its resemblance to the Svensson case), the BestWater case (C- 348/13) and the Public Relations Consultants Association case (C-360/13). Additionally a public consultation that includes copyright issues was recently opened by the European Commission and will end on March 5, 2014. It will be interesting to see how the Court will continue reshaping, or maintaining, elements of prevailing copyright rules.