Two years ago, in Svensson v Retriever Sverige AB  the Court of Justice of the European Union (CJEU) held that a website which redirects internet users through hyperlinks to copyright-protected material which is already publicly available does not infringe the copyright in that material.
The key issue was whether the provision of hyperlinks to protected works freely available on another website constituted a “communication to the public” of those works for the purpose of Article 3(1) of Directive 2001/29 concerning copyright in the information society. If the answer to this question was yes, the consent of the copyright holder would be required.
In the pivotal paragraph of the ruling, the CJEU stated that in order to be caught by Article 3(1), a communication, that covers the same works as those covered by the initial communication and made by the same technical means, must be directed to a “new public”. This “new public” is one not taken into account by the copyright holders when they authorise the initial communication to the public. In Svensson, the claimant journalists had made their content freely available on the internet. When the defendant news aggregator made the content available through the hyperlinks, it was not making the content available to a “new public”. Accordingly, the consent of the journalists was not needed. However, the ruling did not address the possible scenario of where content is made freely available to all internet users on a website but the website contains restrictions on what may be done with the content, or situations where hyperlinks are provided to websites which had not sought permission to use a copyright-protected work from the copyright owner.
The Advocate General has recently given an Opinion on this question, which, if followed by the CJEU, will rewrite the law. An Advocate General’s Opinion is intended as a guide for the Court; it is not binding. Nonetheless, an Advocate General’s Opinion is followed more often than it is not.
The Advocate General’s Opinion is given in the context of a case in which the act of hyperlinking is to copyright material that has been placed on the internet without the permission of the copyright owner. Is this infringement? The Advocate General opines that:
- linking is not an act of communication for the purposes of Article 3(1). This means it cannot be a public communication. This is contrary to Svensson
- even if the content has been published illegally, the link would not be to a “new public” and would not be a “public communication” (save for the situation where the illegal content had not previously been published).
The law in this area is not blessed with clarity and the Advocate General’s Opinion, if nothing else, offers the CJEU the opportunity for a fresh start on what is – and is not – a “communication” to a “new public”. Whether the CJEU resolves to take this opportunity and set aside its existing corpus of case law remains to be seen.
The same subject has recently been considered by the Austrian Supreme Court . In this case, the claimant makes available broadcasts by private radio channels on the internet via streaming. Users of the service are faced with a pre-roll ad (which is how the claimant makes it money from the service). The defendant provides links to digital radio streams, including that of the claimant. This time, however, a user is confronted with the defendant’s advert, not the claimant’s.
The Supreme Court found for the claimant. The existence of the pre-roll ad placed by the claimant was sufficient to render the defendant’s broadcast a communication to a new public. The analysis that circumvention of a restriction – e.g. a paywall or subscription service, or, in this case, suffering a pre-roll ad – constituting a communication to a new public is consistent with Svensson. It is important to emphasise that this is not a decision of an EU Court and therefore, whilst interesting and an indication of how the EU Court might approach a similar dispute, is not binding on it.
 Case C-466/12
 4 Ob 249/15 v, Judgment of 23 February 2016