Case C‑466/12

Nils Svensson and Others

v

Retriever Sverige AB

(Request for a preliminary ruling from the Svea hovrätt)

(Reference for a preliminary ruling — Approximation of laws — Copyright and related rights — Directive 2001/29/EC — Information society — Harmonisation of certain aspects of copyright and related rights — Article 3(1) — Communication to the public — Meaning — Internet links (‘clickable links’) giving access to protected works)

Summary — Judgment of the Court (Fourth Chamber), 13 February 2014

1.        Approximation of laws — Copyright and related rights — Directive 2001/29 — Harmonisation of certain aspects of copyright and related rights in the information society — Communication to the public — Meaning — Making available to the public, on a website, of clickable links to works freely available on another website — Not included

(European Parliament and Council Directive 2001/29, Art. 3(1))

2.        Approximation of laws — Copyright and related rights — Directive 2001/29 — Harmonisation of certain aspects of copyright and related rights in the information society — Communication to the public — Meaning — Not permissible for Member States to give wider protection to copyright holders by including within the concept of communication to the public a wider range of activities than those referred to in Article 3(1) of Directive 2001/29

(European Parliament and Council Directive 2001/29, Art. 3(1))

3.        International agreements — Agreements concluded by the Member States — Agreements preceding a Member State’s accession to the European Union — Agreement allowing a Member State to adopt a measure contrary to EU law — Obligation on the Member State to refrain from adopting such a measure

(Art. 351 TFEU)

1.        Article 3(1) of Directive 2001/29 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.

In this connection, the concept of communication to the public includes two cumulative criteria, namely, an ‘act of communication’ of a work and the communication of that work to a ‘public’.

The provision, on a website, of clickable links to protected works published without any access restrictions on another site, affords users of the first site direct access to those works and must be considered to be ‘making available’ and, therefore, an ‘act of communication’, within the meaning of Article 3(1) of Directive 2001/29. Such an act of communication is aimed at all potential users of the website, that is to say, an indeterminate and fairly large number of recipients.

None the less, 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 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. Making available the works concerned by means of a clickable link does not lead to the works in question being communicated to a new public.

In those circumstances, where 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.

Therefore, since there is no new public, the authorisation of the copyright holders is not required for such a communication to the public.

(see paras 16, 18, 20, 22, 24, 25, 27, 28, 32, operative part 1)

2.        Article 3(1) of Directive 2001/29 on the harmonisation of certain aspects of copyright and related rights in the information society must be interpreted as precluding a Member State from giving wider protection to copyright holders by laying down that the concept of communication to the public includes a wider range of activities than those referred to in that provision.

It is apparent, in particular, from recitals 1, 6 and 7 in the preamble to Directive 2001/29 that the objectives of the directive are, inter alia, to remedy the legislative differences and legal uncertainty that exist in relation to copyright protection. Acceptance of the proposition that a Member State may give wider protection to copyright holders by laying down that the concept of communication to the public also includes activities other than those referred to in Article 3(1) of Directive 2001/29 would have the effect of creating legislative differences and thus, for third parties, legal uncertainty. Consequently, the objective pursued by Directive 2001/29 would inevitably be undermined if the concept of communication to the public were to be construed in different Member States as including a wider range of activities than those referred to in Article 3(1) of that directive.

Furthermore, it must be observed that, if the Member States were to be afforded the possibility of laying down that the concept of communication to the public includes a wider range of activities than those referred to in Article 3(1) of the directive, the functioning of the internal market would be bound to be adversely affected.

(see paras 34-36, 41, operative part 2)

3.        See the text of the decision.

(see para. 39)