## Facts

- Swedish journalists owned copyright in press articles published on a newspaper website.
- The articles were made available online with authorization and were freely accessible to all internet users without paywalls, logins, or other access restrictions.
- A media-monitoring company operated a commercial news-clipping service that provided subscribers with lists of clickable hyperlinks to third-party sites, including the newspaper’s site.
- Clicking the links redirected users to the articles on the original website.
- The journalists sought compensation, claiming the hyperlink service required authorization as a “communication to the public” under Article 3(1) of Directive 2001/29/EC.
- A Swedish appellate court referred questions to the Court of Justice of the European Union on whether hyperlinking to protected works constitutes a “communication to the public.”

## Issues

1. Whether providing clickable hyperlinks to protected works that are freely accessible on another website is a “communication to the public” under Article 3(1) of Directive 2001/29/EC.
2. Whether it matters if the hyperlink presentation could give users the impression the work appears on the linking website (including by framing).
3. Whether the analysis changes where the hyperlink provides access in a way that reaches a “new public,” including by bypassing access restrictions on the source website.

## Decision

- The court held that providing clickable hyperlinks enabling access to protected works is an act of “communication.”
- It held that such linking is not a “communication to the public” when the linked works are already lawfully and freely accessible to all internet users on the source website, and the link does not use a different technical means.
- Because the source articles were freely available, users reached via the hyperlinks were not a “new public” beyond that contemplated by the rightholders for the initial online publication.
- The court stated that user perception about where the work “appears” (including framing) does not change the result where access remains unrestricted and the link does not circumvent restrictions.
- The court indicated that linking can require authorization where it bypasses access restrictions (e.g., paywalls or subscriptions), thereby reaching a “new public.”

## Legal Principles

- “Communication to the public” under Article 3(1) requires (1) an act of communication and (2) communication to a public.
- A further authorization is required if the later communication uses a different technical means from the initial communication, or targets a “new public” not considered by the rightholder when authorizing the initial communication.
- Hyperlinks that give direct access to works can be an act of communication, but do not infringe the communication-to-the-public right if they merely facilitate access to works already lawfully and freely available to all internet users on the source site.
- If a hyperlink circumvents access restrictions and enables persons otherwise unable to access the work to reach it, the link targets a “new public” and can fall within the author’s exclusive right.

## Conclusion

The court interpreted EU copyright law to permit hyperlinking to protected works that are lawfully and freely accessible online without requiring additional authorization, unless the link uses a different technical means or makes the work available to a “new public,” including by bypassing access restrictions.


Svensson v. Retriever Sverige AB, Case C-466/12 (C.J.E.U. 2014)