The Court of Justice of the European Union has recently issued judgement in an interesting copyright case referred to Court by the Swedish Court of Appeal (Svea Hovrätt).
The background of the case is that four journalists sued Retriever, a supplier of media monitoring and tools for news research etc, for copyright infringement. The four journalists had written articles that originally were published in the newspaper Göteborgs-Posten as well as on the website of Göteborgs-Posten. The articles were freely available on the website. Retriever in their turn had on their website provided its clients with links to the articles. The parties disagreed about whether the users, when clicking on the link, where given the impression that the articles appeared on Retrievers site or if it was clear that articles in fact came from another site.
Svea Hovrätt asked CJEU several questions that could be summarized as whether providing links should be regarded as communication to the public and thus an infringement in the copyright of the right holders. They also asked whether the fact that the articles were freely available on Göteborgs-Posten's web site made any difference and further whether it would make any difference if the link just sent the users to another website or presented/framed the linked-to articles on the same website.
The court answered the questions as follows. Article 3(1) of Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society, must be interpreted as meaning that the provision on a website of clickable links to works freely available on another website does not constitute an ‘act of communication to the public’, as referred to in that provision. The Court also stated that a member state cannot give wider protection to copyright holders by including a wider range of activities into the concept of communication to the public according to Article 3(1) of Directive 2001/29 than intended.
So to conclude the crucial questions in connection to linking is no longer whether material gives the impression of appearing on the site on which the link is found or not but whether it is freely available on the website where it originally was published.