CJEU ruling: Links not part of Exclusive Rights
Over the years, the nature of linking have been widely discussed. Courts around the world, even within the EU, have handed Down conflicting verdicts, making the legal regulation of linking quite confusing.
In 2001 the Danish High Court found the linking from a 15-year-old young mans website to copyright protected material on another website to be an independent act of publication of the protected material, and therefore in violation of the copyright owner’s rights. But only 4 years later, the Norwegian Supreme Court dismissed this interpretation of the copyright laws, stating that linking was not part of the copyright owner’s exclusive rights. The situation have therefore been muddy and unclear for years, but with a new verdict (C-466/12) from the Court of Justice of the European Union (CJEU) the situation might be clearing up.
In 2010 employees of the Swedish newspaper Göteborg Posten filed a suit against Retriever Sverige, a website providing its clients with lists of clickable links to articles published by other websites. The plaintiffs claimed that Retriever Sverige had infringed their exclusive rights to make their respective works available to the public. The case ended up before the Swedish Supreme Court, who sought clarification in the matter from the CJEU by asking for a prejudicial ruling on the merits of whether or not linking is within the copyright owner’s exclusive rights.
Last week, on February 13th, the CJEU gave its verdict in the case. The court stated that the relevant Directive (the InfoSoc Directive) must be interpreted to mean, that the mere act of making a clickable link, linking to copyrighted material freely accessible on another website, available on a website does not constitute an act of publication to the public and therefore not a violation of the copyright owner's rights. therefore the linking done by Retriever Sverige did not violate the plaintiffs Göteborg Posten.
The most important point of the ruling is the notion, that an act of publication to the public requires the act to be directed at a public that was not taken into account by the copyright holders, when they authorized the initial publication to the public.
In the case at hand, the public targeted by the initial publication by Göteborg Posten consisted of all potential visitors to the Göteborg Posten website, as the site was not subject to any restrictive measures, making it available free for all users. Therefore the link on Retriever Sverige's website was not directed at a new public, making their linking legitimate according to the CJEU.
This means – in broad strokes – that linking will be legal, as long as the material being linked to is accessible to everyone, hence that the material not located on a website that demands payment for access or is subject to other restrictive measures for access.
Furthermore, it was stated by the CJEU that the Member States of the EU are prohibited from providing a broader protection to copyright holders. This means that the amount of conflicting verdicts previously seen in this area within the EU can be expected to go down, making the copyright regulation just a little bit easier to understand.