E-linking and copyright

With a decision of an absolutely restrictive character in the lawsuit C-466/12, last 13 February 2014 the Court of Justice of the European Union has defined the scope of application of art. 3 par. 1 of the Directive 2001/29, relative to the harmonization of some aspects of copyright and of the rights connected to the information society. Four Swedish journalists, plaintiffs in the main proceeding, have claimed an unauthorized exploitation of some of their published articles on the “Göteborgs-Posten” website by the company Retrieve Sverige AB. This company, owner of an Internet site on which links are provided to works protected by copyright that are present on other sites, would have, according to the plaintiffs, illegally put at disposal of its own clients said articles through its e-linking activity. Appointed of the case by preliminary ruling, the Court of Justice has had to express itself on two interpretative issues: if the e-linking activity towards protected works accessible on another Internet site is included in the definition of “communication to the public” foreseen by art. 3 par. 1 of the Directive and if such a definition can be extended by a member State or not. Such a norm states that “the member States recognize to the authors the exclusive right to authorize or ban any communication to the public, of the wire or wireless type, of their works, comprised the making available to the public of their works in such a way that each one can have access to them from the place and at the moment chosen individually”. In the sentence, the European Supreme Court has pointed out that the notion of “communication to the public” includes 2 essential elements: the “act of communication” of a work and the communication of such a work to a “public”. There subsists an “act of communication” each time a work is rendered accessible to the public, therefore the provision of hypertextual connections is fully included in the definition foreseen by art. 3. As per the profile of the “public”, it is defined as an “undetermined number of potential recipients”. In the present case, the hypertextual connection takes to contents already published on another site, and therefore already freely accessible to the users. According to the Court, so that the communication integrates an autonomous case it is necessary that it is addressed to a “new” public, that is to a public that “has not been taken into consideration by the owners of copyright at the moment in which they have authorized the initial communication”. Such an aspect is missing in the case of the making available works through a clickable link: «if the majority of users of another site, to which the works in question have been communicated through a clickable link, could directly access to such works on the site on which they have been initially communicated, without the intervention of the manager of the other site, the users of the site managed by this last one shall be considered as potential recipients of the initial communication and therefore, comprised within the public foreseen by the owners of copyright at the moment in which they have authorized the initial communication». Basically, when the clickable links take to works covered by copyright but accessible from another site, there does not subsist the applicability of art. 3 par. 1 of the Directive 2001/29.