The judgement of CJEU in the case of Svenssonv Retriever Sverige AB, hereinafter referred to as Svensson, sheds some light on the doubts related to hyperlinking. In the case Retriever Sverige AB (‘Retriever Sverige’) operated a website that contained hyperlinks that redirected users to press articles in the website of the Stockholm newspaper Göteborgs-Posten. Svensson, a journalist including 3 others sued Retriever Sverige AB for communication of their copyrighted work to the public. So after the judgement to the case we try to answer some questions here.
1) Q: What if a website provides hyperlinks to the copyrightable content of another website, otherwise freely available?
Ans: The links that have been posted are linking them to original site itself and allowing them to view what have already been given free access to! So there is no communication to “new public”. Hence there is no infringement of copyright.
By “new public”, the court means, the public that was not taken into account by the copyright holders when they authorized the initial communication to the public to whom the work has been communicated to.
2) Q: But what if the original site has removed such protected content from the site and still another website gives access to those removed contents?
Ans: In this case the access is being given to new public and as per the reasoning of the court in this judgement it would amount to copyright infringement.
3) Q: What if a website gives access only to restricted users to the protected content and another website on the other hand circumvent such restrictions through the links appearing on such site?
Ans: Definitely then access of the content is being given to new public a copyrighted material. Then bypassing such restrictions, will amount to infringement!
4) Q: What if another website links to content from other website in such a way that it appears to the viewers that it is a content of the website on which the links are available?
Ans: In this case if the content is still freely available then as per this judgement it would not result in any infringement as there is free access and no new public is created.
5) Q:Article 3(1) of Directive 2001/29 provides:
Member States shall provide authors with the exclusive right to authorize or prohibit any communication to the public of their works, by wire or wireless means, including the making available to the public of their works in such a way that members of the public may access them from a place and at a time individually chosen by them.
So it is 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 the directive?
Ans: The directive is for the purpose of harmonization of the member state laws and widening the scope of the act of “communication to the public” would be detriment to the purpose.
Conclusion:
In a nutshell the implications of this judgement is that internet users will still be able to share and refer to free contents on the Internet without breaking copyright rules. It is also good news for internet users and especially for content aggregators that direct consumers to content sites whose revenue would otherwise be seriously affected. The judgement of this case is valuable as it settles some of the debated issues and brings in the concept of “new public” which however may not always provide a workable solution in every situation. It sets a positive precedent to cases of hyperlinking of unauthorized content.
The Copyright Act, 1957 of India has inserted a sec 52 (c) after the amendment in 2012 which permits transient or incidental storage of a work or performance for the purpose of providing electronic links, access or integration unless such links, access or integration have been expressly prohibited by the right holder or if the person responsible is aware or has reasonable grounds to believe that such storage is of an infringing copy. We are yet to see how the Indian courts deal with the issue of hyperlinking after this case.
References:
- http://copyright.lawmatters.in/2011/01/hyperlinks-and-copyright-infringement.html
- Alka Chawla , Law of Copyright : Comparative Perspectives, First Edition, 2013
- http://kluwercopyrightblog.com/2014/02/21/the-svensson-case-and-the-act-of-communication-to-a-new-public/
AUTHOR - Neerajita Sarkar
Disclaimer: This blog or any post thereof
is not to be considered to be in any way associated with the official stand of
IIT kharagpur or RGSOIPL on the issues being discussed in the said post. The
opinions on the blog are the authors own and should not be considered as legal
advice.
Good work Neerajita :)
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