20 February 2014

Communication to public must be to ‘new public’

Providing clickable links which lead the user to copyrighted material otherwise available to public is not unauthorised communication. Answering a reference from Svea Court of Appeal (Sweden ), the CJEU has ruled that in order to be ‘communication to the public’ as per Article 3(1) of Directive 2001/29, it must be also be directed at new public.  In the instant case, the defendants placed links to certain articles by journalists which were available in Göteborgs-Posten newspaper.

The copyright holders sought compensation for this unauthorised use of protected work. The CJEU reasoned that since the works were available in the newspaper site without any restriction, the initial communication had been meant to be available to the public at large and would include those who accessed the works through the site of the defendant. Hence, it could not be said that when subsequently it was made accessible by providing clickable links, there was any infringement. The CJEU also opined that member states must refrain from wider protection than provided under the Directive. [Nils Svensson & Ors. v. Retriever Sverige AB, Case C‑466/12 dated 13-2-2014]


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