Today, the European Court of Justice (ECJ) rendered its judgment in the long-awaited Svensson-case. In short, this case concerns the question whether the placing of a hyperlink by someone other than the copyright holder constitutes a “communication to the public” within the meaning of the Copyright Directive (2001/29).

In its decision, the ECJ holds that the mere provision of hyperlinks to copyright protected works does not constitute copyright infringement. Although this results in an act of “communication”, the work is not communicated to a “new public”, that is to say, at a public that was not taken into account by the copyright holders when they authorized the initial communication to the public. According to the Court, the same reasoning applies to embedded links, whereby the work referred to appears in such a way as to give the impression that it is appearing on the site on which that link is found.

Although publishing a link, in principle, does not amount to infringement, the ECJ makes it clear that there are circumstances where that would not be the case, namely if the link allows users to bypass restrictions designed to limit access to a protected work to, for example, a website’s subscriber. In that case, those users would be a new public which was not taken into account by the copyright holders.

“Where a clickable link makes it possible for users of the site on which that link appears to circumvent restrictions put in place by the site on which the protected work appears in order to restrict public access to that work to the latter site’s subscribers only, and the link accordingly constitutes an intervention without which those users would not be able to access the works transmitted, all those users must be deemed to be a new public.”

Read the judgment here.