Hyperlinks and Copyright: Svensson v Retriever Sverige
Monday 12 May 2014 @ 11.03 a.m. | IP & Media
A recent case from the Court of Justice for the European Union (CJEU), Svensson v Retriever Sverige AB (C466/12), has demonstrated the conflict between intellectual property world and the ever-changing internet landscape. The case considered whether hyperlinking to a work could infringe the copyright of its owner. Given the ubiquity of hyperlinking on the internet, a decision in the affirmative would have had almost unimaginable ramifications. Fortunately, the CJEU found that in this particular case, copyright was not infringed. However, the case still raises many interesting legal questions, and makes it clear there is still legally unexplored ground in the things we may take for granted on the internet.
The case
In this particular case, referred from Sweden, the applicants were journalists whose articles were hyperlinked from their original news website by a third party, Retriever Sverge. There was no infringing content involved per se, as the original articles were freely available to anybody who accessed the website.
As reported by Anna Spies on IP WhiteBoard:
“Essentially, the CJEU found… that where the hyperlink was to freely available content, there was a “communication to the public” of the copyright content. However, this was not copyright infringement, since the communication was not directed at a “new public” when the original website was a freely accessible website.”
One of the important considerations to come out of the ruling was that the CJEU felt:
“the position would be different if a hyperlink circumvented restrictions put in place on a website on which a copyright work was hosted, e.g. a pay-wall. In those circumstances, the hyperlink would be communicating the work to a wider, and therefore a new, public, which would require the copyright holder’s authorisation.” (SJ Berwin)
This leaves plenty of room for further consideration of the subject. What would happen if the material was infringing content, or was embedded on the website?
Hyperlinks in the USA
In April this year, “Pulp Fiction” director Quentin Tarantino’s copyright infringement claims against Gawker Media were dismissed by a Californian court. Gawker’s blog had published links to a leaked copy of his screenplay for “The Hateful Eight” on a separate, third-party website. Tarantino’s claims failed primarily because he did not support his claims of infringement with any evidence, so there remains a possibility that he can amend his claim and re-file. Gawker did introduce a fair-use defence into court, which the judge felt was “persuasive and potentially dispositive”, but was unnecessary in the circumstances. If Tarantino did re-file, or a similar case emerged, this could be a very interesting development.
Hyperlinks in Australia
Hyperlinks have also been considered under Australian law, for instance in Universal Music Australia v Cooper (2005) 150 FCR 1. The case differed in that the hyperlinks on the Cooper website did lead to infringing copies of music files, although the Cooper website itself did not store any content. In that case, the Federal Court found that hyperlinks did not constitute a communication to the public from the Cooper website, but rather the communication came from the third party websites. (Cooper was found to have authorised the copyright infringement by the Full Federal Court.)
IP WhiteBoard points out that:
“[a]n important difference between Australian case law and the EU is that Australian law has not developed, to the same extent, the concept of a “new public”.”
Australia does not currently have “fair use” provisions analogous to those in the USA, and the Australian Law Reform Commission has recently recommended their introduction.
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