Svensson & others v Retriever Sverige AB, Case C-466/12, 13 February 2014
In the EU, we now know that the answer is no. Under European law, copyright holders have the exclusive right to authorise or prohibit communication to the public of their works. In February 2014, the European Court of Justice decided that linking or framing to a work that is already freely available on another website is not a communication to the public and so is not part of the copyright holder’s exclusive rights that they can decide whether to allow or to prevent others from carrying out. The exception to this would be if the works were not made freely available, e.g. if they required a subscription or registration to view them: then the copyright holder is entitled to prevent them being made generally available e.g. by circumventing the registration or payment system.
The Court reached this decision by examining the term “communication to the public”: if the initial public intended to be reached when the copyright holder published the work on the web is “all potential visitors to the website” then placing another link on another website does not communicate it to any “new public” – the same potential public will be able to view it, so no authorisation is required from the rights holder. The Court decided that the situation was no different if the work was presented on the third party site as if it appeared on that site (i.e. framing).
What if the work is outdated and I take it down?
The Court expressly addressed this – if the work is no longer available on the site of original publication then the authorisation of the rights holder would be required, as there would be a communication to a different public from the one envisaged by the rights holder. In practice, of course, there should be nothing to link to, if you have taken down the work. Logically, we can take this to mean that caching of previously available content is something that the copyright holder can prevent.
Does it matter if the use is for commercial purposes?
No, that seems to make no difference. The point is that one the work is freely available online, linking and framing don’t form part of the copyright holder’s exclusive rights and so can’t be restricted. To be clear, this is not about “fair dealing” or “fair use” which would be defences to use of copyright works – the Court decided that this further linking/framing is not copyright infringement and so no consideration of fair dealing or fair use is necessary. So links to your works could appear on a third party site supported by advertising. Another thing would be to copy the actual works themselves and republish them – though framing or embedding comes close to this anyway.
Do I need at least to get a credit as the creator of the work?
Here we have to say “possibly”. In the EU, so called “moral rights” (e.g., in particular the right to be identified as author of a work) have been left as a matter for national laws and are not harmonized at EU level. This would seem particularly relevant in the case of framing where the work is presented on a third party webpage. However, in the UK at least: (i) the right needs to be expressly asserted (how many webpages contain any such assertion?); and (ii) the right applies when the work is published commercially, performed in public or communicated to the public. As linking and framing are not regarded as a communication to the public, the right wouldn’t apply. Other legal systems are more protective of authors and moral rights apply with fewer restrictions so we think attribution is something worth arguing for. And ultimately, embedding or including the attribution within the content may be what is really effective.
What about outside the EU?
All EU Member States should be applying this decision in order to interpret their copyright laws. The Court also expressly said that Member States are not entitled to deviate from the decision by extending the definition of communication to the public to include items not expressly mentioned in the EU Directive.
Outside the EU of course other laws apply, though there are various international treaties and conventions which provide a degree of alignment. In the US, the intermediaries may benefit from a safe harbor under the DCMA, however, there is a notice and takedown process which allows right holders some control.
So is this a good thing or not?
The Court’s decision follows some previous case law regarding communication to a “new public” in other media and on balance probably is in line with the way the web has to work in practice. Copyright holders may not particularly like the fact that they lose control over where the work appears but by the same token it is their decision to put their work onto the web freely and publicly.
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