Comments for No need to ask for authorization before hyperlinking, but…what did the EU Court of Justice mean in Svensson?

This situation reminds me of the links you can share on Facebook or Twitter. Two aspects should be taken into account: while you advertise the copyright holder’s work, you also gain some popularity if and when people are interested in that content. It results in your friends liking your Facebook post or new followers on Twitter (sometimes you even get a “retweet”). That can seem mutually beneficial: while the author is rewarded because his work gains some fame and recognition, the user sharing it is trending, too.

But we can see the issue here: why would someone else benefit from someone else’s hard work for no particular or valid reason other that he just can do it? That’s the way things go nowadays, especially on the web. I think that the best you can do is to try to make the most of it, if not embrace it. We’ve already seen the results of drastic reactions and categorical refusal: not only doesn’t it work but it backfires too. People don’t like that but aren’t they the recipient of the work? The public?
Instead of creating new rules (especially stricter ones) or make room for them, the copyright holders should try to take advantage of it. Is there a suitable or desirable legal proposition or solution here? If so, maybe we should not look for one, at least not in the copyright domain because of the burden it puts on everyone else. But there might be practical leads.

Bitly.com for example, allows the user to shorten the links (URLs) they want to provide on the webpage. It’s really interesting to examine what they accomplished here: every click is recorded and analysed so that the user could have a feedback about his content: how many people clicked? How many more only saw the link? There are also financial repercussions, one could earn money that way (1).

Scoop.it is also an interesting social media, allowing the user to share anything on your page by topics you chose and create. In this case, the content is directly embedded and accessible from the user’s page but still the viewer knows where it came from and if he really is interested nothing prevents him to click and access the original content (2).

Things have changed: you can no longer create something nowadays and expect to keep it for yourself. When putting something on the web there is always a chance to find it somewhere unexpected. It’s the power of the link. And so many more ways to use it have yet to be discovered or developed.

It’s not easy to interpret the Svensson decision. And it must not have been easy for the judges to come to one. They closed a door but opened a potential window. But honestly, what else could they have done or said? It’s a delicate matter in which they had to balance the interests of the copyright holders and the interests of the public, which are both legitimate. Maybe there was an attempt here to make things even. The person sharing a link is off the hook for now, as the legislation stands but what if it were to be modified (for example by those special agreements)? But as far as interpretations go, it might be best to see this decision as a final one in this matter, putting the matter to rest.

Concerning the CJEU response in Bestwater, it would only seem logical to have a negative answer to the question asked. But the context here is slightly different than in the Svensson Case. It still does not constitute an “act of communication to the public”, as referred to in article 3(1) of Directive 2001/29/EC but the embedding adds another dimension to the situation. There is now a greater association of the content “shared” with the context of the page where it appears. The court might have or want to be creative on this one.

Now, about C More Entertainment, we are back to the link but this time leading to unauthorized content. Maybe a parallel could be drawn here with the P2P client in order to have a beginning of hypothetical answer? Can we really legally blame the means allowing to access some content already accessible anyway? Here the person providing the content in the first place is at fault. Concerning the one who shared the link to access this illegal content it might be that the only binding obligation upon him would be a moral one. Otherwise a great majority of the web users should be sanctioned too or at least held responsible. Sometimes, like in this case, the infringement is obvious but not always. The web is a free sharing space and this would impede its purpose to be achieved…

About the last sentence of the paragraph 31 in the Svensson decision, not only should it not impact the way search engines function but if it did have an impact, what good would come out of it? Search engines are tools with so many purposes and this would only obstruct their functioning, leading to more circumventions. When trying to find something on the web you can either Google it directly or access some forums on the matter. Thus, by modifying the “behaviour” of search engines (or trying to), we would only put so much more weight on their shoulders.

(1) bitly.com
(2) scoop.it

Question 3.

L’article 3 de la directive 2001/29/CE du 22 mai 2001, sur l’harmonisation de certains aspects du droit d’auteur et des droits voisins dans la société de l’information dispose que «Les États membres prévoient pour les auteurs le droit exclusif d’autoriser ou d’interdire toute communication au public de leurs œuvres, par fil ou sans fil, y compris la mise à la disposition du public de leurs œuvres de manière que chacun puisse y avoir accès de l’endroit et au moment qu’il choisit individuellement. […] Les droits visés aux paragraphes 1 et 2 ne sont pas épuisés par un acte de communication au public, ou de mise à la disposition du public, au sens du présent article.»

La question qui se pose dans l’affaire Svensson (Arrêt CJUE du 13 février 2014, affaire C-466/12) est de savoir si le fait de présenter des liens Internet sur un site, qui renvoient à des œuvres protégées communiquées au public, en l’espèce des articles de presse, se trouvant sur d’autres sites librement accessibles, constitue un acte susceptible de porter atteinte au droit d’auteur. Selon les requérants, cet acte porte atteinte à leur droit de mettre leurs œuvres à la disposition du public.

La Cour examine la notion de communication au public. Il ressort de l’arrêt du 4 octobre 2011 (Affaire C 403/08 et C-429/08, Football Association Premier League e.a., point 193 ) que le premier élément qui constitue cette notion, à savoir l’acte de communication, doit être interprété largement, il s’agit de tout acte de transmission sans tenir compte « du moyen ou du procédé technique utilisé ». Selon la Cour, le fait de disposer sur un site Internet des « hyperliens » renvoyant à des œuvres protégées et accessibles à tous, procure aux utilisateurs du premier site un accès direct à ces œuvres protégées. Puisque mettre une œuvre à la disposition du public suffit pour qu’il y ait un acte de communication, la Cour considère que fournir des « hyperliens » vers des œuvres protégées constitue un acte de communication (Arrêt Svensson, points 17 à 20).

La Cour se penche ensuite sur le fait que l’œuvre doit effectivement être communiquée au public. La notion de public vise un nombre important de personnes indéterminées, cette condition est remplie dans le cas des « hyperliens » puisque l’acte de communication sur le site vise l’ensemble des visiteurs potentiels de ce site, ce qui « constitue un nombre indéterminé et assez important de destinataires » (Arrêt Svensson, points 21 et 22).
Mais la Cour rappelle en se référant à l’arrêt SGAE du 7 décembre 2006 (affaire C-306/05), qu’une telle communication doit être adressée à un public nouveau, « n’ayant pas été pris en compte par les titulaires du droit d’auteur, lorsqu’ils ont autorisé la communication initiale au public » (Arrêt Svensson, point 24).

Le site sur lequels les œuvres se trouvent étant accessibles, sans intervention du gérant de ce site, par les utilisateurs du site où se trouvent les « hyperliens », ces utilisateurs sont potentiellement des destinataires de la communication des œuvres qui a été autorisée au départ et font donc partie du public qui a été pris en compte lors de cette communication. Ce n’est pas un public nouveau. (Arrêt Svensson, point 27) L’autorisation par les titulaires des droits d’auteurs n’est donc pas obligatoire dans ce cas. (Arrêt Svensson, point 28)

Par contre dans le cas où les « hyperliens » permettent aux utilisateurs du site d’accéder au site où se trouve l’œuvre protégée alors qu’ils n’y auraient pas eu accès sans cela à cause de mesures de restriction prise par le gérant du site, ces utilisateurs doivent être considérés comme un public nouveau et l’autorisation des titulaires de droits d’auteurs s’impose alors à cette communication au public (Arrêt Svensson, point 31).

Pour répondre à la question initiale, « selon la jurisprudence de la CJUE, établir des hyperliens peut-il être considéré comme une “communication au public” »?, nous retenons de l’arrêt Svensson que les « hyperliens » peuvent effectivement être considérés comme une « communication au public » dans le cas où ce public est nouveau, c’est-à-dire qu’il n’a pas été pris en compte lors de la communication de l’œuvre sur le site faisant l’objet de l’ « hyperlien ». C’est le cas lorsque l’accès à ce site est limité à certaines personnes. Par contre le public ne sera pas considéré comme nouveau lorsque le site sur lequel on retrouve les œuvres protégées est librement accessible.

In what was undoubtedly one of its most eagerly anticipated rulings the CJEU has finally dealt with one of the more pressing issues at stake with regards to copyright law. In a nutshell, the Court held that content providers need not obtain authorization from the copyright holder, prior to hyperlinking to copyright-protected works “freely available on another website”.

The judgement is as brief as it is prima facie unequivocal in some of its aspects. The main question submitted to the Court focused on whether or not the provision of a clickable link by Retriever Sverige constituted an act of “communication to the public” for the purposes of Article 3(1) of Directive 2001/29 (the “InfoSoc Directive”).
Let it be noted that the following lines will solely focus on commenting the Court’s underlying rationale pertaining to this question.

The Judge of Luxembourg begins by reaffirming the principle under which “every act of communication of a work to the public has to be authorised by the copyright holder”.
The prescription was fairly clear and did not require any additional confirmation. However, referring to its past case law, the Court elaborates on this matter by clearly outlining two essential conditions that must be met for an act to be qualified as an “act of communication”:
Primo, there must be an “act of communication” (Part I.) and secundo, the said communication must made to a “public” (Part II.)

Part I. The notion of “act of communication” post Svensson

Regarding the first condition, true to its prior decisions the Court confirms that the existence of an act of communication must be “construed broadly”. Hence, “any transmission of the protected works, irrespective of the technical means or process used” may constitute an act of communication within the meaning of article 3(1) Directive InfoSoc. As a result, the Court rightly considers that making protected works “available” by means of a clickable link is tantamount to an act of communication (Svensson, §20).
It should be noted that the Court specifies that in casu, users were provided with “direct access” to the protected works that had originally been published “without any access restrictions”. Such a consideration does not bear any relevance with regards to the notion of “act of communication” itself. However, its impact in ascertaining the second prerequisite of an act of communication “to the public” cannot be understated and will be examined in the later stages of this commentary.

The judge of Luxembourg’s extensive interpretation of what constitutes an act of communication leads him to consider that availability trumps the actual availing of the possibility. In other words, whether the user actually clicks on the hyperlink – thus leading him to be transported to the linked website containing the litigious works – is irrelevant in determining the existence of an act communication.
The analogy to SGAE (C-306/05, §43) is wholly unsurprising and illustrates the Court’s desire to grant authors with the privileges of a fairly large spectrum of protection. Indeed, it must be reminded that Directive InfoSoc does not provide us with an actual definition of what constitutes an act of communication. Hence, the actual harmonization task falls solely within the hands of the CJEU acting as guardian of the Community law’s cohesion. It follows settled case law that the Court has not shied away from maintaining such a broad interpretation of article 3 Directive InfoSoc.
However, can its holding in Svensson be conciliated with the idea that “ the European Union legislature intended that each transmission or retransmission of a work {must be a} specific technical means” (TvCatch up, §24)?
The question is not entirely devoid of interest as one could posit that in the grand scheme of things, hyperlinking does not differ from the original technical means, which is to communicate content by making it accessible through the Internet. In other words, it is not wholly unthinkable to ascertain that hyperlinking is merely a “technical means” to “ensure or improve reception of the original transmission” (TvCatch up, §28). It is our belief that the relevance of the aforementioned consideration should not be simply discarded. The fact that the Court does not even deem necessary to pronounce itself on this matter is quite unsettling. Indeed, it must be reminded that in TvCatch up, the Judge of Luxembourg, referring to Premier League (§194) and Airfield (§§74 and 79), stated “that a mere technical means to ensure or improve reception of the original transmission in its catchment area does not constitute a ‘communication’ within the meaning of Article 3(1) of Directive 2001/29. Accordingly, we believe that the Court is guilty of a lack of foresightedness in assuming that hyperlinking is an act without which users would be unable to enjoy the protected works. The resounding silence on this particular issue leaves the door open to an overly inclusive interpretation of the notion of communication.
Undoubtedly, when a hyperlink enables a user to access published works that were access-restricted on the original website (for example through means of a paying subscription), it must be considered as more than just a simple technical means to ensure or improve the reception of the original communication. However, can one unequivocally arrive to the same conclusion when the protected works were not originally access-restricted, as was the case in Svensson?
It is our belief that the Court should have clarified this issue, which puts at stake the implicit freedoms that derive from the very existence of the Internet and the principal objective of Directive InfoSoc, which is to establish a high level of protection of authors (SGAE, §36; Premier League, §186; TvCatch up, §20).

Part II. The notion of “public” on the Internet

Regarding the second condition providing that the communication must be made to a “public”, the Court seems to have opted for a conciliatory approach by first reaffirming a previously held principle before carving an additional criterion.
Indeed, by referring to SGAE (§§37 and 38) and to TvCatch up (§32), the Judge of Luxembourg confirms that the term “public” must be understood as an “indeterminate number of potential recipients and implies, moreover, a fairly large number of persons”. Accordingly, he thus draws the ipso facto conclusion that when a user communicates by means of clickable links indiscriminately aimed at all potential users, he is in fact targeting a fairly large number of recipients thus making a communication to a public (Svensson, §23).

However, in the same breath, the Court provides us with the fulcrum on which relies its rationale by stating that {A]ccording to settled case-law, in order to be covered by the concept of ‘communication to the public’, within the meaning of Article 3(1) of Directive 2001/29, a communication, such as that at issue in the main proceedings, concerning the same works as those covered by the initial communication and made, as in the case of the initial communication, on the Internet, and therefore by the same technical means, must also be directed at a new public, that is to say, at a public that was not taken into account by the copyright holders when they authorised the initial communication to the public.

In hindsight, reference to the “new public” criterion appears logical though the solution was not in itself self-evident. To support it’s reasoning, the Court cites its previous decisions.
In SGAE (§§40 to 42), the Judge of Luxembourg carved the “new public” criterion out of article 11bbis (1) of the Berne Convention. The idea is thus that a new public exists when the communication is made to a public “different from the public at which the original act of communication of the work is directed”. The Court subsequently confirmed the condition by applying it in “Premier League ” (§§197-198), “Organismos Sillogikis Diacheirisis Dimiourgon Theatrikon kai Optikoakoustikon” Ergon (§38), TvCatch up (§38-39) and “Airfield” (§72).
It appears to us that the aforementioned “new public” criterion bears significant importance in the Court’s eyes; more so than the “indeterminate number of recipients” and “fairly large number of persons” criterion.
The Court’s inclination to refer to the “new public” criterion is probably based on the legitimate foundations it lies upon (the Berne Convention) and on its adaptability to multiple situations. Indeed, unlike other criteria such as the “interactivity” criterion it used in “BeSoft” (regarding the communication to the public of a GUI), the new public criterion has this very appealing advantage of being applicable to different factual scenarios.
Furthermore, it appears all the more enticing when one factors in the high level of protection of authors sought by the Directive InfoSoc. Indeed, the reasoning behind its application lies on the implicit premise that authors must be allowed to control any communication made in violation of their legally protected rights – for example, when the communication reaches a “new public” – presumably by granting them with “an appropriate reward for the use of their works” (SGAE, §36).

Regarding its application in Svensson, the Judge of Luxembourg observed that “The public targeted by the initial communication consisted of all potential visitors to the site concerned, since, given that access to the works on that site was not subject to any restrictive measures, all Internet users could therefore have free access to them”, thus leading him to hold that “here all the users of another site to whom the works at issue have been communicated by means of a clickable link could access those works directly on the site on which they were initially communicated, without the involvement of the manager of that other site, the users of the site managed by the latter must be deemed to be potential recipients of the initial communication and, therefore, as being part of the public taken into account by the copyright holders when they authorised the initial communication”.

The adaptability of the “new public” criterion is clear for all to see and provides the Court with the necessary leeway to accomplish its fine tuning endeavour.
Primo, the Svensson decision confirms the new public criterion when the subsequent communication is made by “the same technical means” as the initial communication (Svensson, §24). In other words, when two operators use the same technical means to make their respective communication of identical content, the latter will not be deemed as “made to the public” if the said public was not “new”.
Such an approach only confirms the “new public” criterion’s applicability to all cases pertaining to the possible existence of a communication to the public. However, it is our belief that the Court went as far as to establish a iuris et de iure presumption that on the Internet there can be no “new public” when the protected works are initially communicated online without any access restrictions. Indeed, the enormity and intertwined nature of the Internet implies that when a website is not access-restricted, its content becomes accessible to anyone, regardless of location considerations. In other words, the user who links – by means of a clickable hyperlink – freely accessible protected works cannot be considered as an indispensable middleman.
The reader of this commentary will no doubt be at odds with the apparent contradiction offered by such a conclusion. Indeed, if the Court was implying that in situations like the Svensson case, the subsequent communication is not made to a “new public”, – because users can already freely access the protected works – are we to deduce that there is in fact no “communication”? As stated earlier, the Court previously held that that a mere technical means to ensure or improve reception of the original transmission in its catchment area does not constitute a ‘communication’ within the meaning of Article 3(1) of Directive 2001/29. Accordingly, if access provided by means of a clickable hyperlink to freely accessible protected content is not a communication to a new public, then what is it if not a mere tool that simply provides Internet users with an additional access-entry (by this we mean another entry point to the protected content).

In light of what has been said, the next point might appear difficult to conciliate with the Court’s holding. The question relates to the initial public on the Internet.
In Svensson, the Court clearly states that the initial public of the initial communication consist of “all potential visitors to the site concerned” (Svensson §26), provided the website is “not subjected to any restrictive measures” (Svensson, §26). In other words, when content is not access-restricted, the initial public is but one public consisting of potentially all Internet users.
Such a conclusion stems from what appears to us as an overly extensive interpretation of the notion. Indeed, the Court bases itself on the premise that when an author – within the meaning of Directive InfoSoc – communicates his works on the Internet, he implicitly agrees to grant access to potentially all Internet users.
In this regard, we contend that one could envision sub-categories of Internet users. For example, if an author communicates unrestricted shocking or adult-only content, can one categorically consider he intended it to be accessible to all Internet users? Moreover, do all users have an effective access to the content (for example, parental control restrictions: these are not restrictions imposed by the content provider and do not restrict access to the Internet itself)?
The idea of a single abstract public underscores the Court’s refusal to consider the “linker’s” actions as potentially public expanding. By this we mean that the Court seems unwilling to envision the conception of a hyperlink as a means to provide access to an enlarged public.
Furthermore, as will be discussed infra, such a stance can probably be interpreted as an implicit rejection of the “intent” based approach.

At first glance, the Svensson decision is an undeniable thumbs up addressed to proponents of a free and interconnected World Wide Web. This prima facie claim is reinforced by the fact that the Court did not pronounce itself on the distinction between surface links and other more questionable types of links such as inline linking or links made by framing. However, with regards to copyright law, it seemingly considers the distinction as irrelevant as it stated that the additional circumstance “that when Internet users click on the link at issue, the work appears in such a way as to give the impression that it is appearing on the site on which that link is found, whereas in fact that work comes from another site” (Svensson, §29), in no way alters its previous conclusions. Hence, a clickable link – regardless of the type of link that is used – to a protected work that was previously communicated online without any access-restrictions is a communication within the meaning of article 3(1) Directive InfoSoc, but is not a communication to a “new public”. Consequently, the “authorisation of the copyright holders is in any event not required” (Svensson, §30).
Additionally, one might wonder whether the Court in handing down Svensson had envisioned the potential economical repercussions of its decision. With this in mind, we believe Svensson provides a website manager with a stepping-stone to potentially reap the fruits of the author’s works.
Did the Court ultimately considers that authors – when they communicate their works online devoid of any access restriction – implicitly agree in all circumstances to make their works accessible to all internet users? Moreover, can one interpret the Court’s silence on this matter as an implicit repudiation of the “lucrative nature” criterion that had previously been applied? (cf. SGAE, §44). The answer seems to be heavily tilted in this sense as fits the Judge of Luxembourg apparent desire to conciliate the imperatives of a free Internet with the intangibles of copyright prerogatives.

Part III. Svenssons’s limits and the rejection of the “intent” criterion

Though Svensson appears swift and clear in its holding, there area however certain limits that were erected by the Court.
Primo, the Judge of Luxembourg explicitly states that when a clickable link enables users to circumvent restrictions put in place by the site on which the protected work was originally communicated, the said link must be viewed as an indispensable intervention without which those users would not have been able to freely access the said protected work. Hence, in such a situation the hyperlink constitutes a communication made to a “new public” and will require prior authorization.
On the one hand, the situation is relatively unambiguous: the linker is an indispensable middle-man whose communication (by means of a hyperlink) is necessary to provide users with access to protected content they would not be able to freely access otherwise.
On the other hand, what appears far more obscure relates to the restriction in question. The Court most probably intended to encompass technical measures of restriction in the same vein as the TPMs that are used to prevent product copying. Furthermore, we believe that restrictions of a contractual nature would also fall within the scope of the limitation (conditions that users must accept in order to navigate on the website for example).
Should the restriction be of a financial nature? It is our belief that the possibility should be included but should not constitute the sole type of restriction.
Furthermore, if the restriction to the original website has been installed by the website manager without the explicit consent of the copyright holder, does the said restriction fall within the scope of the limitation? These are questions that remain unanswered as of today. However, based on the Court’s rationale it would not be farfetched to consider that inking designed to circumvent walled content restrictions, geographical restrictions or to restore access to deleted content is likely to amount to a communication to a “new public” and will require authorisation from the copyright holder.
Inevitably, the Court will be called upon to clarify the specific restrictions that will be deemed relevant. We hope to be provided with an answer in the eagerly anticipated C More Entertainment case relating to the circumvention of a paywall system by means of a hyperlink. On the basis of Svensson’s teachings, the answer in this case appears to be a foregone conclusion: the first two questions referred y the Swedish Högsta domstolen will no doubt find a direct echo in Svensson. We believe that the CJEU will probably deem that the defendant (Linus Sandberg) was an indispensible middle-man whose intervention was indispensable to all users who did not have direct access to C More Entertainment AB’s content. By hyperlinking to the applicant’s protected works, the defendant – by means of a clickable link – circumvented the paywall system designed to restrict access to paying users thus making the content available to a “new public”. Hence, if the Court arrives to this conclusion it will have no choice but to consider that the hyperlinks at issue in the case were communication to the public that required prior authorization from the copyright holder.
Fundamentally, the key question in C More Entertainment is whether a paywall is required of if a free subscription or registration is sufficient to constitute a restriction within the scope of Svensson.

Secundo, the Court explicitly considers that hyperlinks will be deemed a communication to a “new public” when it links to a website “where the work is no longer available to the public on the site on which it was initially communicated or where it is henceforth available on that site only to a restricted public, while being accessible on another Internet site without the copyright holders’ authorisation” (Svensson, §31). This example is clearly evocative of the Google v. Copiepress case in which the argument pertaining to the cache memory stored on Google’s servers had been used. In casu, cache memory copies were made accessible to users, regardless of whether the press articles were no longer freely accessible (they had been archived and were thus only accessible to subscription users).
More fundamentally though, we believe that the final sentence might bear consequences with regards to the way search engine function. Indeed, when a search engine such as Google references query based search results, it does so on the basis of its algorithm. If one uses Google as a case point, the organic search results are generated by Google’s PageRank algorithm references websites following a popularity scale based on website linking. Hence, with regards to its organic search results Google may not have the entire control on whether or not users will ultimately choose to access a website linking to otherwise restricted protected content.
The last sentence in Svensson thus appears quite problematic if one factors the way search engines work. Indeed, they provide users with clickable links to websites based on the user’s query. In other words, if one were to apply Svensson to the letter, it would appear that search engines like Google would have to tweak their algorithms in order to exclude from their query based result pages hyperlinks to websites that allow users to access content that they would not otherwise be able to access.

Tertio, though the Court appears to confirm its prior decisions, we must concede our surprise to the lack of reference to the “intention” criterion, which had been applied in SGAE (§42), Premier League (§196) and Del Corso (§§82 and 92). Must we interpret the absence of reference to this condition as its implicit rejection? The answer is probably not a straightforward one because of the very nature of the Internet. Indeed the aforementioned decisions related to communications that were not made by means of the Internet. Additionally, had it applied the “intention” criteria in Svensson, it would have been difficult – if not impossible – for the Court to establish that the initial public may potentially consist of all internet users when the protected works are not originally access-restricted. Our contention is based on the fact that an intention based rationale would imply that the act of communication would be de facto limited ratione loci (countries where the targeted users have access) and ratione personae (targeted users). As it appears, the Court opted in Svensson for an accessibility-based approach, which is wholly at odds with the intention approach.
All in all, what may be the most surprising to some is that the Court shied away from adopting an intention-based rationale. Indeed, though the intent criterion appears particularly inadequate in cases like Svensson that revolve around the Internet, the Court had in fact applied it in Football Dataco v. Sportradar. Though the aforementioned case related to the sui generis right on databases, some authors believed the Court would ultimately reason by analogy. However, it appears in Svensson that it considered that the necessary equilibrium on the Internet would have been too heavily tilted in favour of users had it adopted an “intent” rationale.

As words of conclusion, we believe that Svensson underscores the CJEU’s desire to balance the legitimate interests of copyright holders with the necessary freedoms that derive from the Internet: concessions are imposed on both sides.
In a possibly tantalising chain of events, the unanswered questions from Svenssen may be answered in C More Entertainment and BestWater. With regards to the later, the German Federal Supreme Court (Bundesgerichtshof) referred to the CJEU a question regarding the legitimacy of framing video content. In light of Svensson, the answer seems relatively predictable: the technique or type of link used is irrelevant in determining the existence of a communication; what is really important lies upon the “new public” criterion.

Une communication au public à lieu lorsqu’on transmet une oeuvre à un public, de manière distincte et non par le truchement d’un support matériel, et ce, peu importe le vecteur de transmission de l’œuvre. Le droit de communication au public s’étend également aux actes de mise à disposition du public de telle manière que chaque membre du public peut y avoir accès de l’endroit et au moment qu’il choisit individuellement. Sont donc inclus, les actes de communication sur demande, ainsi que tout acte de communication d’œuvres sur les réseaux. En somme, ce qui compte, c’est que l’œuvre soit communiquée à un public potentiel qui peut y accéder. Selon la CJUE, le critère essentiel du droit de communication réside dans le fait qu’un acte de diffusion de l’oeuvre est susceptible de créer un nouveau public pour cette oeuvre. Ainsi, lorsqu’on met sur un site un hyperlien qui renvoit à un autre site contenant des oeuvres protégées par le droit d’auteur et que l’accès de ce site en lui-même n’est pas protégé, on ne peut considérer qu’il y a une communication au public. En effet, il y a tellement de gens qui utilisent internet, qu’une fois que l’oeuvre est communiquée sur internet, on ne peut prétendre que le renvoi à ce site par un hyperlien est une nouvelle communication au public. Le public était déjà potentiellement dans la possibilité d’accéder à ce site vu que ce dernier n’était pas protéger.
La situation serait différente si l’oeuvre avait été communiquée sur un site internet protégé et que l’hyperlien aurait contourner les restrictions d’accès à ce site. Dans ce cas-là, il y aurait eu violation du droit d’auteur. La Cour l’explique très clairement dans le paragraphe 31 de l’arrêt Svensson.
Selon moi, on peut considérer que le fait de diffuser une oeuvre sur un site internet qui ne bénéficie d’aucune protection implique une sorte d’épuisement du droit de communication au public sur les réseaux. En effet, les sites internet sont à la portée de tous, on ne peut donc limiter leur utilisation. Sauf si le site sur lequel il y a eu la diffusion de l’oeuvre est lui-même protéger, restreint son accès à un certain nombre de personnes définies.
Grâce à la règle de l’épuisement, tout hyperlien qui renverrait à une oeuvre communiquée sur un site internet non protéger serait licite. Même si l’épuisement ne s’applique qu’à la circulation d’objets matériels, on pourrait, il me semble, agrandir son champ d’application à l’internet.
En outre, cette règle de l’épuisement permettrait à favoriser l’accès aux œuvres par les utilisateurs d’internet.

Il semble logique que la Cour, va dans son arrêt Bestwater and C More Entertainment suivre le même raisonnement qu’elle a eu pour l’affaire Svensson. Au regard de la question préjudicielle, il semblerait qu’il n’y ait pas, selon les critères relevés par l’affaire Svensson, une nouvelle communication au public.

Even if of course there might be good reasons to prohibit those practices that may constitute abuse (mostly online), I think it is not the best option consider those kind of links as a communication to the public. The CJEU is not very clear about the reason of its decision but I think that the conclusion is the best way to balance every rights.

Indeed in this case the CJEU left the door open to other interpretations in the future. If the Court considered that generate a link back to another page freely accessible, it would be like banning almost all internet activities. Internet works with linking. How to generate traffic on your website ? Using adwords but also being referenced on other websites.

In Svensson, pages was freely accessible to the public. So the criterion of «new public» viewed as a large (and indeterminate) number of potential recipients of the communication that the author has not considered is a right criterion. There are a little problem with this criterion on Internet. Indeed a website or an article on Internet is on a page in «world wide web». So the potential recipients of the initial communication is very large and can include people around the world. Without restriction to access to the online page it is very difficult to consider there are a «new public» with a link even if the «article» or the «page» is presented without reference to the original website.

But it would be very dangerous for the online freedom to consider that kind of communication was a «communication to the public». The web is potentially very wide and if content is freely accessible it is difficult to contest a link on the basis of the «right to communicate to the public».

A solution for the author to protect his content is to limit the access. He can offer a freely access for a short time and after limit the access. In this way the content and the page is not freely accessible. So there are a communication to the public if someone makes the article accessible via a freely clickable link. In this case, the Court permits consider that a link could be a «communication to the public» in the future in others conditions. It is not a complete rejection of this possibility and it is a good think because of daily changes the interpretation of texts has to adapte to match with the today’s society and its challenges. The european texts cannot be adapted for every change. So it is the role of the Court and it is why it should not give a definite opinion.

In “Bestwater and C More Entertainment”, the questions are similar that in “Svensson”. So the responses should not differ. The first concerns the including of measures to make available on a website open to the public a clickable link to a work in the «communication to the public» notion. The response is clear in Svensson. Essentially there are «communication to the public» if there are a new public. So it depends of the circumstance to know if there are a new public.

The third question is about the fact that the work to which the linking is done is (in any way) restricted. On the basis of the «new public» notion we can estimate that if the access to the work is restricted and the link is available on a website open to the public, there are a new public. The Court has to examine the circumstance and different criterion to see what means «restricted». It is possible that the restriction is very large and so does not exist in fact. But if there are a true restricted access maybe it can constitute a «communication to the public» because there are a new public.

For the fourth question I think the response of the Court is very clear. Regarding the objective of harmonization and even if the preamble of the Directive recognizes some differences in national laws. Such kind of wider protection risk counter to the objective of the Directive.

The last sentence of the paragraph 31 concerns where the work is no longer available to the public on the website on which it was initially communicated. It is a good way to permit to the author to protect his work. Indeed the link making available this content permits access to a new public. The difficulty is that the link generator can argue that those public had access in the past to this content. So if the content was available to the public but now it is no longer available to the public, is it possible to consider that these very broad communication has permitted all communication in the future?

It is a difficult question but the Court seems estimate that a work no longer available to the public is protected if there are a communication to the public, notion including «new public». About the impact for the search engines it can relate to agregator as Google News. Indeed more and more newspapers make their content no longer available to the public after few days (or weeks). But if the link is made where the content was available I think it is ok. Because when the content will be no longer available normally the link no longer works. But if the aggregator creates the link after when the content is no longer available it can be a problem mostly that there are a «moral element» because the aggregator knows that the content is not available. An other case can be if the link created when the content was available works after that. In this case it is the responsability to the author to check that the limited access on his content works.

To conclude, in this case the CJEU is very vague about the reasons for its decision but it is maybe not a bad thing because it permits other future interpretation following the society evolution. In matter like Internet and technologies the role of the Court is very important and it is important to permit to it to adapt interpretation as required following the objectives of Directives and Regulations.