European Court of Justice, Nils Svensson et al v Retriever Sverige AB, C-466/12

Document type
Court Decision
The ECJ decided that links to authorized works freely available online do not infringe the E.U.-recognized exclusive right of communication to the public. The case involved journalists claiming that the website Retriever Sverige had improperly linked to news articles they had authored, thereby making those articles available to the public without permission, in violation of copyright law.
(1) For the first time, the ECJ announced a rule that links communicate works to the public, which is a copyright owner’s sole prerogative under EU law. However, the court said that those links are not infringing and do not need additional authorization from the copyright owner unless they make the work available to a new public (par. 25-28). A new public must include people other than those who can access the work thanks to the rightsholders’ conduct. In other words, if the rightsholder publishes the work online, anyone can link to it without further permission. 
(2) Next, the ECJ decided that for copyright purposes, there is no difference between a link which takes the user to another website where the work (presumably) is lawfully displayed and one which embeds the work, giving the impression that it is appearing on the linking website. Because only a link that communicates the work to a “new public” infringes the copyright holders’ exclusive right (par. 30), copyright law does not offer any redress for this practice. However, the ECJ does not exclude the possibility that courts may still sanction this practice under some circumstances as a form of unfair competition. 
(3) Finally, the ECJ decided that Member States are not entitled to give wider protection to authors by defining “communication to the public” more broadly than is done in the InfoSoc Directive (par. 33-41). See also CIS blog.
Year
2014
Topic, claim, or defense
Copyright
Document type
Court Decision
Issuing entity
Transnational Court
Type of service provider
General or Non-Specified
OSP obligation considered
Other
Type of law
Civil
General effect on immunity
Strengthens Immunity