Svensson - it's all about the "new public"

The much-anticipated (not least by this blog) decision in Svensson is out!

The CJEU has created a brilliant finesse in order to answer the question in a manner which is consistent with the existing acquis.

So the core answers to the referring court's questions are as follows:

1. Article 3(1) of Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society, must be interpreted as meaning that the provision on a website of clickable links to works freely available on another website does not constitute an ‘act of communication to the public’, as referred to in that provision.

2. Article 3(1) of Directive 2001/29 must be interpreted as precluding a Member State from giving wider protection to copyright holders by laying down that the concept of communication to the public includes a wider range of activities than those referred to in that provision.

The court holds that, while a link is an act of making available, where a work is already accessible on the open internet, then that act of making available does not require the consent of rightsholders because it is not a new public.

They go on to say that if you are linking to something that is, for example, normally behind a registration or other barrier so not generally available, that would be something that requires consent: "On the other hand, where a clickable link makes it possible for users of the site on which that link appears to circumvent restrictions put in place by the site on which the protected work appears in order to restrict public access to that work to the latter site’s subscribers only, and the link accordingly constitutes an intervention without which those users would not be able to access the works transmitted, all those users must be deemed to be a new public, which was not taken into account by the copyright holders when they authorised the initial communication, and accordingly the holders’ authorisation is required for such a communication to the public. This is the case, in particular, where the work is no longer available to the public on the site on which it was initially communicated or where it is henceforth available on that site only to a restricted public, while being accessible on another Internet site without the copyright holders’ authorisation."

The Court also has something to say about embedding and framing - although at first reading, this blogger is not clear exactly what the court is trying to say (and maybe this is something that is lost in translation).

28 Therefore, since there is no new public, the authorisation of the copyright holders is not required for a communication to the public such as that in the main proceedings.

29 Such a finding cannot be called in question were the referring court to find, although this is not clear from the documents before the Court, that when Internet users click on the link at issue, the work appears in such a way as to give the impression that it is appearing on the site on which that link is found, whereas in fact that work comes from another site.

This appears to be saying that, even if something is embedded, it is still not being communicated to a new public - although clearly that leaves open the possibility of other claims such as passing off or unfair competition, where an embedded link is held out as being associated with the linking site.