February 21, 2014
Under EU law it is the author who decides about the public availability of his or her work.
In Sweden an administrator of a website placed on his webpage hyperlinks to publicly available articles. Authors of the texts claimed that this violated their IP rights, because they did not give permission for this specific release of their work.
In this situation, a Swedish court asked the Court of Justice of the European Union the question of whether placing a link to the content constituted an “act of communication to the public”, and therefore there had been a violation of copyright law.
In its judgment in Svensson et al. The Court of Justice of the European Union agreed that sharing links with unspecified but fairly large number of customers constitued an “act of communication to the public”. In general, the person making such an act should obtain the consent of the author.
At the same time, the Court emphasized that the author’s consent is required for making their work available to a new audience, namely that which has not been taken into account in the initial communication. In the case of the site sued for the alleged violation of IP law, the audience was the same as the recipients of the page where journalists originally placed their content.
Therefore, the Court held that there was no copyright infringement. The person running the website could provide links and redirect his users to works available on a freely accessible basis on another site.
The Court distinguished this situation from the situation of sharing content that is intended only for a limited group of subscribers. According to the logic of the decision, if new users were not the primary audience, providing access to that kind of content would be a copyright infringement.