The outcomes of theSvensson case: Internet issafe, but what about EUcopyright law?

Philippe Jougleux,Assistant Professor, Law Dept., European University of Cyprus.

Introduction

One very common cliché about the information

technology law is that the technological advance is

always faster than the legal adaptation to the society.

This implies that the technology modifies in depth the

human nature and behavior to a point where the regulation

of this behavior ceases to be adequate. Nothing can be

more wrong. For instance, does a plastic gun created with

a 3d printer cease to be a gun? And if I use it to kill

someone, won’t it be a murder?

However, sometimes appears an entirely new conduct,

based on a revolutionary technology, which indeed really

changes the societal behavior. The Copyright law, then,

is one of the fields of the law which is the most1

sensible about these revolutions. Each big step forward

in the technology of the information, from the printed

press to the radio stations, from the hertz tv to

satellite broadcasting, has forced the copyright law to

adapt. Internet is now based on the decentralization of

the information and the interaction of the users.

The linking technology constitutes one foundation

of this technology that has been questioned by scholars

since the beginning: are hyperlinks something new,

outside the law and, more peculiarly, not understood by

the Copyright law, or are they just another kind of

communication to the public subject to a making available

right?

The liability regarding the hyperlinks is of course

not limited to intellectual property issues but it also

concerns the personality rights protection, the normal

application of unfair competition regulation and the

application of general tort law1. However, as it was long-

awaited, the European Court of Justice has recently

agreed to discuss this topic and its decision for the

first time - C-466/12, Svensson v Retriever Sverige AB of

2

13 February 2014-. Based on the common sense, nobody was

really expecting the court to rule that the act to create

a link to a protected work of mind – by extension

Internet itself – is illegal. By opposite, the

justification offered by the European Judge was the

center of many discussions and comments. Eventually, the

judges offered a surprising short decision, without

asking the opinion of the General Advocate, and adopted a

clear compromise, which will be analyzed here.

The lack of an opinion of a General Advocate has

been largely seen as an error by the scholars. It has

been interpreted as a false nonchalance of the judge

towards a not-so-simple issue. But it could also be

interpreted as a symbolic act to indicate with force that

the position of the court on this point is absolute and

won’t be modified in the near future2.

To really understand the position chosen by the

European Court, we first need to explore the various

options it had (I). The decision itself, quite clear in

appearance, does not avoid the creation of zones of

uncertainty (II). However, the scholars could be

3

criticized for exploiting and magnifying these unclear

aspects according to their position in a context of

polarization of the discussion about the copyright law

(III).

1. Svensson: The issue and the various approaches

available

a. The issue

At the beginning, Svensson is a Swedish case where

journalists and rightholders of their articles on the

newspaper’s website sued another website for infringement

because of the existence of links to their articles. It

is worth mentioning that the kind of links used here were

not clearly stated.

We could distinguish the basic hyperlink to a

webpage first from the deep link, which aims to a

specific content of a website, secondly from the embedded

link (for video) or inline link (for images), which not

only links the content but also presents it directly on

the webpage, or, last, from the frame link, the link

which, when auctioned, will present the content in the

4

frame of the original website. Both embedded links and

frame links may create the illusion that the content is

actually hosted in the original webpage. Apparently, in

the Svensson case, the journalists claimed that it was a

frame link whereas the second website owner pretended it

was just a deep link to the articles.

Four preliminary questions3 have been asked to the

European judge with the general and indistinct

terminology “clickable link”. They can be summarized as

followed: firstly, is the clickable link a form of

communication to the public? And secondly, how much

harmonization has occurred in this field of law, that is,

what freedom has been left at a national level to the

judges and legislator to interpret the communication to

the public right? If a lot of attention – this

presentation included - has been given mostly and

exclusively to the first point, the second is also

relevant in the frame of a discussion about the creation

of a European Copyright code4.

Therefore, the case constitutes the framework of a

conflict between two philosophies: the absolute freedom

5

of linking which dominates Internet since its beginning

and the potential harm caused by the creation of link in

a legal perspective.

b. The contractual solution

This conflict has already been ruled in the past by

some national courts and some solutions have emerged or

have simply been envisaged. A first one – the elegant

one, we could say – is to resort to the classic mechanism

of contract law. In other words, by uploading the

litigious content on Internet, the right holder

implicitly gives his consent to normal utilization of its

work in the scope of Internet. This theory of the implied

licenses have been used for instance by the German courts

to justify the Google service of images search (“google

images”) whereas the thumbnails of the images were showed

directly in the frame of the famous search engine

website5.

However, this solution was deemed to be rejected at

the European level, since there is not a real

harmonization of the contractual copyright law in EU. In

lots of countries, not only the consent cannot be given

6

implicitly, but also the formality of a written document

is needed for every kind of license.

c. A solution coming from the human rights theory

Another solution could have been to refer to the

human rights as a limitation to Copyright law. We know

this topic has gradually appeared during the last decade

as a major discussion about contemporary copyright law.

The main idea is to accept that the link is a form of

communication to the public and to justify it, on the

principle of proportionality, according to the freedom of

expression and the right of the public to information

that prevail. (or: The main idea is to accept that the

link is a form of communication to the public by

insisting upon the prevailing freedom of expression and

right of the public to information, on the principle of

proportionality.) This approach is not unknown to the

Court of Justice of European Union in the subject of

Copyright law and we could see some traces of its

application in the cases Scarlett and Netlog6.

This solution, however, suffers in many points,

which are generally common throughout the application of

7

human rights to Copyright law. Firstly, how could it be

compatible with the mechanism of a closed list of

exceptions and limitations to copyright accepted by the

Infosoc Directive?7 Also, does it not open a Pandora’s

box, since the principle of proportionality would mean an

in concreto approach, link by link, presupposing an

analysis of the objective pursued by the linker, the

informative value of the content of the work of mind and

its contribution to the democratic debate?

d. A solution based on the exceptions and limitations

to copyright law

It would have been interesting to search more if the

act of linking was not already protected/safeguarded

under an established exception to copyright prerogatives.

For instance, it could be argued that a link is just a

mere form of citation or of a “press review”. Some

authors indeed think that solution to contemporary

problems of copyright law should be found inside the

copyright law system itself and ask for the introduction

of a measure of flexibility alongside the existing

structure of limitations and exceptions8.

8

The difficulty here is that the exception of short

quotation applies to the reproduction right, not to the

right of making available to the public and that the

exception of press review in the countries where it had

been adopted has always been interpreted very

restrictively. However, it is important to highlight that

it was the solution adopted in the USA somehow. In other

words, the linking has been justified by reference to the

fair use exception, in the landmark case Perfect 10, Inc.

v. Amazon.com, Inc9. The Ninth Circuit considered whether

an image search engine's use of thumbnail was a fair use

and the court found the accused infringer's use fair

because it was "highly transformative."

e. The solution of denial of application of copyright

law

The last available solution is to establish as a

principle that hyperlinking acts as a mere indication of

(easily accessible) source and not as a communication to

the public in the sense of the Infosoc directive10. It was

the position of the defendant in the Svensson case and

also the opinion of the European Copyright society11. The

9

main idea is that a hyperlink does not amount to

"transmission" of a work. Some obvious situation of

unfair uses of hyperlinks could instead be regulated by

the general provision of tort law, and more precisely by

the regime of secondary liability12.

However in the light of the abundant EU case law on

the notion of communication to the public13, this solution

was highly improbable. Indeed, traditionally, the

European judge does not require an actual transmission to

accept a communication to the public and has explicitly

given a broad definition of this notion for the means of

harmonization.

2. The decision and its analysis

a. A decision founded on the interpretation of the

concept of communication to the public

The European judges in the decision C-466/12 had a

very limited range of options. They could not refuse the

categorization of communication to the public without

disclaiming their previous jurisprudence. On the other

hand, they could not obviously rule that the links were

illegal.

10

In a contrasted approach, they gave therefore an

apparently simple, clear and elegant solution. For a link

to be covered by the Copyright law, two cumulative

conditions have to be gathered: a communication to the

public and a new public14. About the first condition, the

court holds that “a work is made available to a public in

such a way that the persons forming that public may

access it, irrespective of whether they avail themselves

of that opportunity”. And the court concludes that indeed

the link is an act of communication.

A new public is a public not covered originally by

the first communication (the uploading of the linked work

of mind). Quite audaciously, the court rules that by

uploading a work of mind on the internet without

restrictions, the right holder offers its access to all

internet users by definition. By consequence, the linking

act, by principle, does not add a new public and does not

infringe the prerogatives of the right holder.

The court creates one exception to this finding:

this is the case of a technically protected work of mind.

In this case, the link to the work to a large public is

11

deemed to constitute a violation of the intention of the

author, since the latter explicitly limited the diffusion

of the work to a certain public.

b. A rupture with previous decisions?

The condition of a new public is not a novelty.

However, its definition marks quite a differentiation

from the Court’s previous case law. The court in Svensson

opted for an objective determination of the public.

Typically, the judges keep the definition of the new

public adopted in the past: “a public that was not taken

into account by the copyright holders when they

authorised the initial communication to the public”.

However, in the past, the court preferred a subjective

approach of this definition, as the amount of persons

targeted by the author when he communicated his work. For

instance, in the Airfield case15, which involved the

distribution of encrypted satellite broadcasts to a

satellite package provider’s customers, the same

definition has exactly been adopted. But in the end, the

intervention by the satellite package provider was held

to be a separate type of communication.

12

Never in the past had the judge considered the

receivers of the communication in such a broad way. If we

compare with the solutions found in matter of private

international law, we see a conflict in the definition of

the notion of online communication. In private

international law, according to the CJUE, a certain

number of factors have to be taken into account such as

the international nature of the activity, the use on the

website of a specific language or currency, the use of a

specific top-level domain name16. In the Berne Convention,

such a broad definition of the notion of new public has

also been avoided and the notion of ‘organisation other

than the original’ was adopted instead17.

The general idea is, with the help of objective

criteria, to determine what the intention of the author

could have been. And even in the field of copyright law,

the notion of intention has played a fundamental role in

the past. For instance, in the case Dataco I18, the judges

took into account the geographical targeting of the

public. However, to assimilate all the internet users

13

into a unique public neglects the diversity of the

internet19.

Moreover, the Svensson judgment, in this effort to

synthetize the case law on the notion of communication to

the public, has completely set aside the three fold

analysis, the three presumptions created by the cases

SGAE v Rafael Hoteles SA, Akropolis20, Premier League21,

Marco del Corsot22, Phonographic Performance (Ireland)

Limited23 : a new public, a large uncertain amount of

persons and the economic purpose of the communication.

This last condition appeared in some previous decisions

and provoked the critics of the scholars, since this

element of definition of the making available right is

absent from the Berne Convention. The economic purpose

criterion is implicitly rejected in Svensson, even if it

could have already been accepted from the CJEU’s previous

decision in the Tv Catchup case24 that the profit-making

nature of the retransmission is definitively discarded as

a criterion of definition25.

14

c. New areas of uncertainty

But the main reproach that most scholars have

addressed to the decision is that, while it seems to

clearly answer the question of the legality of the links,

some aspects remain very unclear. This uncertainty

concerns first of all the status of frame links. The

court tersely explains that no distinction has to be

made. Indeed even a frame link does not infringe the

right of the author. But, what about the moral right of

paternity of the author of the work? The issue also

creates discussion of unfair competition and passing off.

Is it then a new trend to limit the field of application

of copyright law, with consequence to let the discussion

pursue in the fields of competition law?

Furthermore, the notion of the consent of the

rightholder to the communication to the public, as we

have seen, is presumed to encompass all internet users,

with the exception of – at first sight – “paywall

overlay”. But is it a simple presumption? A contrario, is

it possible to choose an opt-out system by means of

contractual restrictions26? If some rightholders add a

15

disclaimer below the work of mind where it is mentioned

“I do not authorize the linking of this content”, could

it be possible that a potential link is not infringing?

In the same way, the court creates a relationship between

the use of technical limitations of access to the work of

mind and the presumed consent. However, internet

technology offers now a lot of means to control the

access: not only paywall overlay (or more generally, the

access through connection to a secure server with a login

and a password), but also geographical limitations based

on the IP address, limitations based on the use of a

specific protocol (the darknet, for instance Thor). Are

these means included in the notion of technical

limitation, as the latter is described or understood by

the Court?

And finally, some discussions have started about the

lawfulness of the content pointed by hyperlinks. The

court does not discuss this point expressly.

Nevertheless, since the judges founded their reflection

on the notion of consent, in an a contrario approach, it

cannot be possible to accept that the linking of an

16

infringing content is legal. We could by analogy refer to

the recent decision of the European court about the

private copying exception, whereas the legality of the

content has been expressly raised as a condition of the

legality of the private copy27.

3. A comment on the Svensson’s comments

In definitive, the Svensson case tried to achieve a

balance between two different philosophies. Similarly to

the Painer case about the concept of originality, the

Svensson case is a mirror of the actual problems of

copyright law: each expert sees in there the reflection

of his own expectations. Some, for instance, read it as

an abusive enforcement of IP on Internet, while others

interpret it as a deviation from the classic rules of IP.

At the end, the results are quite pessimist, since they

show that Svensson is the revealer of a growing gap

between various conceptions of the IP, with, as a

consequence, a crisis that will certainly widen.

Most scholars agree with the solution itself, based

on common sense, but they are concerned with the

justification of the solution. More peculiarly, we can

17

distinguish two main categories of comments and two

philosophies of modern copyright law. In the first one,

Svensson is a mistake, since it recognizes that a link is

a communication to the public and therefore it places

internet under the supervision of the copyright law28. In

the second one, the Svensson case is also a mistake,

since, by defining the public as each internet user, it

marks a rupture from the definition of the notion of

communication to the public and a violation of the Berne

Convention. It is significant that two major

organizations on copyright law, the ALAI and the European

Copyright Society, before the decision, gave two opposite

conclusions on this topic.

One could have the feeling that for the first school

the IP law is implicitly doomed to accept the novelty of

the internet revolution and to substantially reform

itself and to restrain its application. For the second,

the extinction of IP law on internet is not a fatality,

but just a matter of policy. However this dichotomy does

not reflect only a “quarrel of the Ancients and the

Moderns”, as experienced by each generation, but it

18

reveals some profound divergence as the adequate policy

to adopt for the future of Copyright and shows how

ideological has become nowadays the discussion about

copyright. This quarrel opposes those who believe that

Copyright law should stop its overwhelming growth in the

field of new technologies and those who, at the opposite,

believe that Copyright law has to struggle to survive and

should enforce more efficiently.

Conclusion

Two similar cases were pending on the CJEU until the

decision of the Svensson case, one concerning embedded

linking of Youtube video29 and one about frame linking of

sport matches30. It appears certain that the court will

profit from this occasion to explain further and detail

his new jurisprudence about the making available right.

Nevertheless, the Svensson case reveals in practice

a new policy of the European judge about this fundamental

right in the Information society and by itself this

decision merits the huge attention it has received. But

also, it has to be interpreted and analyzed in a more

general approach: the mode of reasoning of the judge,

19

using and abusing of the concept of autonomous notion of

European copyright law, citing and referring to previous

case laws, but concretely taking his distance with the

definitions and solutions offered in his previous

jurisprudence, is characteristic of a general modus

operandi. These specific interpretations of the European

Directives are similar to the doctrine of precedent,

while at the same time, as we have seen, the court is not

afraid to alter his previous jurisprudence according to

some practical implied needs of equity. Perhaps in

definitive the future of the European copyright law is

nowadays to be found more in the actions of the European

Court than in legislative interventions, though with the

inconvenience that the Court places itself in a sort of

legal “Nirvana” independent of the national legal

traditions of copyright law31.

20

1 Alain Strowel and Nicholas Ide (2001), “Liability with Regard to Hyperlinks”, 24Columbia Journal of Law and the Arts 403.2 Ballard, T. (2014), Communication to the public and the “new public” test: theCourt of Justice puts its foot down in Svensson, available athttp://www.harbottle.com/european-copyright. 3 “1. If anyone other than the holder of copyright in a certain work supplies aclickable link to the work on his website, does that constitute communication tothe public within the meaning of Article 3(1) of Directive 2001/29/EC of theEuropean Parliament and of the Council of 22 May 2001 on the harmonisation ofcertain aspects of copyright and related rights in the information society?2. Is the assessment under question 1 affected if the work to which the link refersis on a website on the Internet which can be accessed by anyone withoutrestrictions or if access is restricted in some way?3. When making the assessment under question 1, should any distinction be drawnbetween a case where the work, after the user has clicked on the link, is shown onanother website and one where the work, after the user has clicked on the link, isshown in such a way as to give the impression that it is appearing on the samewebsite?4. Is it possible for a Member State to give wider protection to authors' exclusiveright by enabling 'communication to the public' to cover a greater range of actsthan provided for in Article 3(1) of Directive 2001/29/EC of the EuropeanParliament and of the Council of 22 May 2001 on the harmonisation of certainaspects of copyright and related rights in the information society?”.4 Various initiatives aim to determine the essence of limits of an eventualEuropean codification of copyright law. In this context, the delimitation of thenotions of copyright law which have “ascended” to the level of autonomous notion ofEuropean law seems fundamental in order to achieve a result. As an example ofEuropean codification, see the non-official Wittem project, available onhttp://www.copyrightcode.eu/. On the debate about the codification of Europeancopyright law see : T. Synodinou (ed.) (2012), Codification of European Copyright Law,Challenges and Perspectives, Kluwer Law International.5 Decision I-20 U 42/11 Dusseldorf Court of Appeal 8 October 2011, I ZR 140/10,19.10.2011- Vorschaubilder II.6 Valerie Laure Benabou, http://droitdu.net/2014/02/quand-la-cjue-determine-lacces-aux-oeuvres-sur-internet-larret-svensson-liens-cliquables-et-harmonisation-maximale-du-droit-de-communication-au-public/ 7 Confirmed in the ACI Adam case also, C-435/12.8 P. Bernt Hugenholtz, Martin R.F. Senftleben (2011), “Fair use in Europe. Insearch of flexibilities”. Available at SSRN: http://ssrn.com/abstract=1959554.9 487 F.3d 701 (9th Cir. 2007).10 Copyright Directive 2001/29/EC of the European Parliament and of the Council of22 May 2001 on the harmonisation of certain aspects of copyright and related rightsin the information society.11 http://www.ivir.nl/news/European_Copyright_Society_Opinion_on_Svensson.pdf12 T. Targosz (2014), The Court of Justice on Links: It is Allowed to Link. AtLeast In Principle. Available at: http://kluwercopyrightblog.com. 13 Joined Cases C-403/08 and C-429/08 Football Association Premier League and Others [2011]ECR I-9083, paragraph 193.14 C-607/11, ITV Broadcasting Ltd, 7 March 2013.

15 CJUE, 13 October 2011, Airfield NV, Canal Digitaal BV v Belgische Vereniging vanAuteurs, Componisten en Uitgevers CVBA (Sabam) (C-431/09), and Airfield NV v AgicoaBelgium BVBA (C-432/09), par.72.16 Joined Cases C-585/08 and C-144/09 Peter Pammer v. Reederei Karl Schlüter GmbH &Co. KG and HotelAlpenhof GesmbH v. Oliver Heller (References for a preliminaryruling from the Oberster Gerichtshof),Judgment of the Court (Grand Chamber) of 7December 2010.17 http://kslr.org.uk/blogs/europeanlaw/2014/03/24/case-note-on-c-46612-svensson/18 ΕCJ, 18 Οctober 2012, C-173/11.19 Benabou, op. cit.20 C-136/09, Organismos Sillogikis Diacheirisis Dimiourgon Theatrikon kaiOptikoakoustikon Ergon, 18 March 2010.21 C-403/08, Football Association Premier League and Others, 4 October 2011.22 C-135/10, Società Consortile Fonografici (SCF) v Marco Del Corso, 15 March 2012.23 C-162/10 Phonographic Performance (Ireland) Limited v Ireland and AttorneyGeneral, 15 March 2012.24 C-607/11, ITV Broadcasting Ltd and Others v TV Catch Up Ltd, 7 March 2013.25 On this issue see: T. Synodinou, (2015), Réflexions autour de la récente etféconde œuvre jurisprudentielle européenne en droit d’auteur, Conferenceproccedings of the conference « Le droit d’auteur dans la jurisprudence de la CJEU»in the honour of Professor A. Lucas, Propriétés Intellectuelles (forthcoming).26 M Jelf, T Ohta (2014), “Hyperlinks and copyright: The Court of Justice of theEuropean Union delivers its verdict”, available at at:http://www.bristows.co.uk/articles/hyperlinks-and-copyright-the-court-of-justice-of-the-european-union-delivers-its-verdict.27 C-435/12, ACI Adam BV and Others (2014).28 For instance, the European copyright society, Opinion on The Reference to theCJEU in Case C-466/12 Svensson, 15 February 2013, available at ivir.nl. 29 Bestwater, C-348/13.30 C More, C-279/13.31 Michel M Walter (2014), ‘Du développement du droit d’auteur européen durant ladernière décennie et du rôle de la Cour de Justice de l’Union Européenne’, in CBernault, J-P Clavier, A Lucas-Schloetter, F-X Lucas (eds), Mélanges en l’honneurdu professeur André Lucas, Paris : Lexisnexis, p.785.