(1)The owner of a website could, without the authorisation of the copyright holders, redirect internet users, via hyperlinks, to protected works available on a freely accessible basis on another site.
In reaching its decision, the CJEU considered it apparent from Article 3(1) of the Directive that the concept of ‘communication to the public’ included two cumulative criteria:
(a) The existence of an ‘act of communication’: this had to be construed broadly in order to ensure a high level of protection for copyright holders. It was sufficient that a work was made available to the public in such a way that the persons could access it, irrespective of whether they did so. It followed that the provision of clickable links to protected works had to be considered to be ‘making available’ and, therefore, an ‘act of communication’, within the meaning of that provision.
(b) The communication of that work to a ‘public’: it followed that the term ‘public’ referred to an indeterminate number of potential recipients and implied, moreover, a fairly large number of persons, such as the users of the Retriever Sverige service.
However, according to settled case-law, 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 public, that is to say, a public that was not taken into account by the copyright holders at the time the initial communication was authorised. There was no such new public in this case. As the works offered on the Göteborgs-Posten website were freely accessible, the users of Retriever Sverige’s site had to be deemed to be part of the public already taken into account by the journalists at the time the publication on the Göteborgs-Posten website had been authorised.
Such a finding would not be called into question by the fact that (were it to be the case) when internet users clicked on the link at issue a work appeared in such a way as to give the impression that it was appearing on the site on which that link was found, whereas in fact that work came from another site.
The CJEU did specify that the situation would be different where a clickable link makes it possible for users of the site on which that link appears to circumvent restrictions put in place by the site on which the protected work originally appeared, such as the restriction of public access to the website’s paying subscribers only. In that case, the users would not have been taken into account as potential public by the copyright holders when they authorised the initial communication and would be deemed to constitute a new public.
(2) Article 3(1) of the Directive could not be construed as allowing Member States to give 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.
The objectives of the Directive were, inter alia, to remedy legislative difference and legal uncertainty that exist in relation to copyright protection. Any other conclusion reached by the CJEU would have the effect of creating legislative differences and thus, for third parties, legal uncertainty.