Access to Public Information, Content Regulation / Censorship, Licensing / Media Regulation, Press Freedom, Privacy, Data Protection and Retention
Dupuis v. France
Closed Expands Expression
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The Court’s decision provides a useful clarification regarding the circumstances in which a website is permitted to redirect internet users through hyperlinks to protected works. The Court held that when the protected work is already freely available online, hyperlinks to that material is permissible.
The applicants, Svensson and many other journalists, wrote freely accessible press articles on the website of the Göteborgs-Posten newspaper. The respondent, Retriever Sverige, provided a news-monitoring service which supplied hyperlinks to articles posted to other websites, including on Göteborgs-Posten.
The applicable law in this case is Article 3(1) of Directive 2001/29 on the harmonization of certain aspects of copyright and related rights in the information society. Article 3(1) requires Member States to provide authors with the exclusive right to authorize or prohibit any communication to the public of their works.
The applicants brought an action against Retriever Sverige before the Stockholm District Court in order to obtain compensation on the ground that Retriever Sverige had made unauthorized use of their articles by making them available to its clients. The applicants contended that if a client clicked on one of the links, it would not be apparent that the client had been redirected to Göteborgs-Posten’s site to access the article.
The application was rejected and the applicants appealed the decision before the Svea Court of Appeal, which decided to stay the proceedings and to refer the matter to the Court of Justice of the European Union (ECJ) for a preliminary ruling.
The main issue was whether an act of “communication to the public” as described in Article 3(1) of Directive 2001/29 included the act of posting clickable links on one website to protected works on another website.
The European Court of Justice (ECJ) found that the owner of a website could, without the authorization of the copyright holders, redirect internet users to protected works freely available on another site.
In reaching its decision, the ECJ found that the concept of “communication to the public” in Article 3(1) included two criteria: First there must be an “act of communication.” What constituted such an act had to be construed broadly in order to ensure a high level of protection for copyright holders. Simply making a work available to the public was sufficient in this case.
The second criteria is that the work must be communicated to a “public.” By “public,” the court referred to “an indeterminate number of potential recipients” and implied “a fairly large number of persons,” such as the users of the Retriever Sverige service.
The Court found that, although these two criteria were met, in order to be covered by the concept of “communication to the public” within the meaning of Article 3(1), a communication had to be directed at a new audience, or a new “public”–one that had not been taken into account by the original copyright holders. There was no such new public in this case because the works offered on Göteborgs-Posten’s website were freely accessible to anyone with an internet connection.
The ECJ did specify that the situation would be different where a hyperlink makes it possible for users of the site on which that link appears to circumvent restrictions put in place by the site on which a protected work originally appeared, such as the restriction of public access to the website’s paying subscribers only.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
The Court’s decision provides a useful clarification of the circumstances in which a website may be able to redirect internet users through hyperlinks to protected works. Ultimately, the decision expands expression because it allows websites to proliferate already freely available works, such as news articles, through hyperlinks.
Global Perspective demonstrates how the court’s decision was influenced by standards from one or many regions.
Case significance refers to how influential the case is and how its significance changes over time.
The decision is of particular significance to English jurisprudence as it clarifies the doubts expressed by Arnold J in Paramount Home Entertainment v BSkyB  EWHC 3479 as to whether the mere provision of a hyperlink amounted to a ‘communication to the public’ for the purpose of s.20 of the Copyright, Designs and Patents Act 1988. The question of what constitutes “freely available” for the purposes of the Article 3(1) of the Directive may in turn require further clarification.
Let us know if you notice errors or if the case analysis needs revision.