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IP/Entertainment Case Law Updates

Svensson v. Retriever Sverige AB

Plaintiff journalists wrote articles that were published in a Swedish newspaper and were freely accessible on the newspaper’s website. Defendant Retriever Sverige AB operates a website that provides its users with hyperlinks to articles published by other websites. The journalists brought an action against Retriever, seeking damages they allegedly suffered as a result of Retriever’s hyperlinks’ redirecting users to the journalists’ copyrighted articles without their authorization. The Stockholm District Court rejected the journalists’ claims, and they appealed to the Svea Court of Appeal. Before that court, the journalists argued that Retriever infringed their exclusive right to make their respective works available to the public as set forth in the World Intellectual Property Organization (WIPO) Copyright Treaty. In its defense, Retriever argued that its hyperlinks did not constitute infringement because they did not transmit the articles but only indicated to users where the articles could be found. The Court of Appeal stayed the proceedings to refer specific questions to the European Union Court of Justice, including a preliminary ruling on whether providing hyperlinks to protected works that are freely available on another website constitutes an act of communication to the public within the meaning of the WIPO Copyright Treaty.

Under the WIPO Copyright Treaty’s Article 3(1) of Directive 2001/29, “Member States shall provide authors with the exclusive right to authorize or prohibit any communication to the public of their works . . .” The Court of Justice explained that the concept of communication to the public necessarily has two criteria: (1) an “act of communication” of a work, and (2) communication of that work to the “public.”

As to the first criteria, the Court explained that an “act of communication” must be construed broadly to ensure a high level of protection for copyright holders. Further, it is sufficient that a work is made available to a public in such a way that the persons forming that public may access it, regardless of whether they actually do. The Court found that, because providing hyperlinks to protected works published on a website without any access restrictions affords users direct access to those works, it follows that providing hyperlinks must be considered “making available” and, therefore, an “act of communication” within the meaning of the WIPO Copyright Treaty. Retriever’s hyperlinks therefore constituted an act of communication.

As to the second criteria, the Court explained that the communication must be directed to a “new public” – a public that was not considered by the copyright holders when they authorized the initial communication of their works. The Court concluded that Retriever’s hyperlinks did not direct the journalists’ articles to a “new public,” because the public targeted by the newspaper’s website consisted of all potential visitors to the site, given that access to the articles on that site was not subject to any restrictions and all Internet users could have free access to them. Because Retriever did not direct its hyperlinks to a “new public,” the journalists’ authorization was not required. Providing hyperlinks to copyrighted works freely available on another website does not constitute an act of communication to the public within the meaning of the WIPO Copyright Treaty, concluded the Court.

The Court also found that its holding is not affected by whether the work appears in such a way as to give the impression that it is appearing on the same website as the hyperlink rather than coming from another website. If hyperlinks to copyrighted works make it possible for users to circumvent restrictions on public access put in place by the publishing website, however, then those users are a new public, and the copyright holders’ authorization is required for that communication to the public.

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