This is an issue which has been discussed before on this blog in relation to decisions by the US, Canadian, French and Dutch courts. The UK government has considered whether new legislation is required to clarify the law on this point but decided to wait for the Supreme Court's decision in NLA v Meltwater.
Today the IPO has reported that a Swedish court, the Svea hovrätt, has made a request for a preliminary ruling from the CJEU regarding the infringement of exclusive rights to make copyright protected work publicly available by a third party subscription search engine. The case is Nils Svensson, Sten Sjögren, Madelaine Sahlman, Pia Gadd v Retreiver Sverige AB (Case C-466/12).
The following questions have been referred:
1. If anyone other than the holder of copyright in a certain work supplies a clickable link to the work on his website, does that constitute communication to the public within the meaning of 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?
2. Is the assessment under question 1 affected if the work to which the link refers is on a website on the Internet which can be accessed by anyone without restrictions or if access is restricted in some way?
3. When making the assessment under question 1, should any distinction be drawn between a case where the work, after the user has clicked on the link, is shown on another website and one where the work, after the user has clicked on the link, is shown in such a way as to give the impression that it is appearing on the same website?
4. Is it possible for a Member State to give wider protection to authors' exclusive right by enabling "communication to the public" to cover a greater range of acts than provided for in 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?
In short, the CJEU is being asked:
1. Does linking constitute communication to the public?
2. Does it matter if the website being linked to imposes restrictions on access on its users? (It is not clear from the questions what these restrictions on access are in this case, however they are likely to be the website's T&Cs or paywalls requiring subscription.)
3. Should there be a legal distinction between linking and framing?
4. Can a Member State expand the meaning of "communication to the public" to cover more than is set out at Article 3(1) of the InfoSoc Directive?Given the volume of litigation on these issues and the intrinsic nature of links to the internet, these are clearly questions to which responses are needed. The UK IPO is inviting comments by 3 December 2012.