The European Court of Justice has recently ruled (3 January 2014, Case C-466/12) that the provision of clickable links on a website, which afford users of that website to directly access copyrighted works located on another website, does not amount to a “communication to the public”, which is subject to the authorization of the copyright holder.
Although the court confirms that the provision of such clickable links is an “act of communication”, it rejects the qualification of communication “to the public”, by referring to settled case-law according to which a communication concerning the same works as those covered by the initial communication and made on the internet must also be directed at a “new” public, in order to constitute a communication to the public.
A “new” public is a public that was not taken into account by the copyright holders when they authorized the initial communication to the public. The court rules that when a work is placed on a website with a free access, the public targeted by the initial communication consists of all internet users, since all of them could have free access to the copyrighted content on the website. Therefore, offering access to the copyrighted work through a hyperlink is not a communication to a “new” public.
The court also states that it is irrelevant that the work appears in such a way as to give the impression that it is appearing on the site on which that link is found, whereas in fact that work comes from another site.
Displaying clickable link granting access to restricted content, which is not available to all users of the internet, however constitute a communication to a new public and the authorization of the copyright holder remains required.
