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CJEU decides in hyper-linking case

On 13th February the Court of Justice of the European Union (CJEU) gave its decision in the Nils Svensson and others v Retriever Sverige AB case (C‑466/12), referred by Swedish court Svea hovrätt. This long-awaited decision pondered the very technical question of whether a hyperlink to a rightholder’s copyright protected work placed on another website requires authorization from and remuneration for the rightholder.

The CJEU ruled that although the act of creating a hyperlink was an act of communicating to the public, in this specific case authorisation and remuneration is not required. According to “Directive EC/2001/29 on the harmonisation of certain aspects of copyright and related rights in the information society,” ‘making available’ means an act of communication to the public. The CJEU has made several judgments already on the making available right and its interpretation in European law. However, this case took one step further. Whilst the provision of a hyperlink is a communications to the public, the CJEU ruled that it was not a communication to a “new” public. Because Retriever Sverige AB’s hyperlinks were freely available online already, the provision of a hyperlink does not target a new public as the content is already accessible to everyone with a internet connection. Therefore, the court concluded that this does not fall under copyright law.

Effectively, this means that all copyrighted content is protected when it is behind a paywall or subscription system, where the user has to log in to get access. If the material was already available to the larger public, a hyperlink is legal. This case got quite some publicity, since it might set a precedent for future copyright cases. Strangely enough, however, the Advocate General did not give an opinion on the matter, even though normally he or she does. For the entire decision, click here.

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