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Home > Search form > List of results > Documents Language of document : ! T"E C U#T $!ourth Cham%er& '( !e%ruar) *+', $-& $#eference for a .reliminar) ruling / 0..ro1imation of laws / Co.)right and related rights / Directi2e *++'3*43EC / Information societ) / "armonisation of certain as.ects of co.)right and related rights / 0rticle ($'& / Communication to the .u%lic / Meaning / Internet lin5s $6clic5a%le lin5s7& gi2ing access to .rotected wor5s& In Case C,883'*9 #E:UE;T for a .reliminar) ruling under 0rticle *8< T!EU from the ;2ea ho2r=tt $;weden&9 made %) decision of '> ;e.tem%er *+'*9 recei2ed at the Court on '> cto%er *+'*9 in the .roceedings Nils Svensson, Sten Sjgren, Madelaine Sahlman, Pia Gadd 2 Retriever Sverige !, T"E C U#T $!ourth Cham%er&9 com.osed of L? @a) Larsen9 Aresident of the Cham%er9 M? ;afBan9 J? Maleno2s5C $#a..orteur&9 0? Arechal and ;? #odin9 Judges9 0d2ocate General: E? ;har.ston9 #egistrar: C? ;trDmholm9 0dministrator9 ha2ing regard to the written .rocedure and further to the hearing on < No2em%er *+'(9 after considering the o%ser2ations su%mitted on %ehalf of: Mr ;2ensson9 Mr ;BDgren and Ms ;ahlman9 %) ? EilDf9 fDr%undsBurist9 Ms Gadd9 %) #? GFmeG Ca%aleiro9 a%ogado9 and M? Eadsted9 ad2o5at9 #etrie2er ;2erige 0@9 %) J? H%erg9 M? @ruder and C? #oc5strDm9 ad2o5ater9 the !rench Go2ernment9 %) D? Colas9 !?-I? @rJchot and @? @eau.Kre-Mano5ha9 acting as 0gents9 the Italian Go2ernment9 %) G? Aalmieri9 acting as 0gent9 and %) ;? !iorentino9 a22ocato dello ;tato9 the United Lingdom Go2ernment9 %) J? @ee5o9 acting as 0gent9 and %) N? ;aunders9 @arrister9 the Euro.ean Commission9 %) J? ;amnadda and J? Enegren9 acting as 0gents9 ha2ing decided9 after hearing the 0d2ocate General9 to .roceed to Budgment without an .inion9 gi2es the following "udgment This reMuest for a .reliminar) ruling concerns the inter.retation of 0rticle ($'& of Directi2e *++'3*43EC of the Euro.ean Aarliament and of the Council of ** Ma) *++' on the harmonisation of certain as.ects of co.)right and related rights in the information societ) $ J *++' L '8<9 .? '+&? The reMuest has %een made in .roceedings %etween Mr ;2ensson9 Mr ;BDgren9 Ms ;ahlman and Ms Gadd9 the a..licants in the main .roceedings9 and #etrie2er ;2erige 0@ $6#etrie2er ;2erige7& concerning com.ensation allegedl) .a)a%le to them for the harm the) consider the) ha2e suffered as a result of the inclusion on that com.an)7s we%site of clic5a%le Internet lin5s $h).erlin5s& redirecting users to .ress articles in which the a..licants hold the co.)right? Legal conte#t International law The EIA Co.)right Treat) The Eorld Intellectual Aro.ert) rganisation $EIA & ado.ted the EIA Co.)right Treat) $6the EIA Co.)right Treat)7& in Gene2a on *+ Decem%er '448? It was a..ro2ed on %ehalf of the Euro.ean Communit) %) Council Decision *+++3*<>3EC of '8 March *+++ $ J *+++ L >49 .? 8&? 0rticle '$,& of the EIA Co.)right Treat) .ro2ides that the contracting .arties are to com.l) with 0rticles ' to *' of the Con2ention for the Arotection of Literar) and 0rtistic Eor5s9 signed at @erne on 4 ;e.tem%er '>>8 $Aaris 0ct of *, Jul) '4<'&9 as amended on *> ;e.tem%er '4<4 $6the @erne Con2ention7&? The @erne Con2ention 0rticle *+ of the @erne Con2ention9 entitled 6;.ecial 0greements 0mong Countries of the Union79 states: 6The Go2ernments of the countries of the Union reser2e the right to enter into s.ecial agreements among themsel2es9 in so far as such agreements grant to authors more e1tensi2e rights than those granted %) the Con2ention9 or contain other .ro2isions not contrar) to this Con2ention? The .ro2isions of e1isting agreements which satisf) these conditions shall remain a..lica%le?7 JUDGMENT

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European Union law #ecitals '9 ,9 89 <9 4 and '4 in the .ream%le to Directi2e *++'3*4 state: 6$'& The Treat) .ro2ides for the esta%lishment of an internal mar5et and the institution of a s)stem ensuring that com.etition in the internal mar5et is not distorted? "armonisation of the laws of the Mem%er ;tates on co.)right and related rights contri%utes to the achie2ement of these o%Becti2es? N $,& 0 harmonised legal framewor5 on co.)right and related rights9 through increased legal certaint) and while .ro2iding for a high le2el of .rotection of intellectual .ro.ert)9 will foster su%stantial in2estment in creati2it) and inno2ation9 including networ5 infrastructure9 and lead in turn to growth and increased com.etiti2eness of Euro.ean industr)9 %oth in the area of content .ro2ision and information technolog) and more generall) across a wide range of industrial and cultural sectors? N N $8& Eithout harmonisation at Communit) le2el9 legislati2e acti2ities at national le2el which ha2e alread) %een initiated in a num%er of Mem%er ;tates in order to res.ond to the technological challenges might result in significant differences in .rotection and there%) in restrictions on the free mo2ement of ser2ices and .roducts incor.orating9 or %ased on9 intellectual .ro.ert)9 leading to a refragmentation of the internal mar5et and legislati2e inconsistenc)? The im.act of such legislati2e differences and uncertainties will %ecome more significant with the further de2elo.ment of the information societ)9 which has alread) greatl) increased trans%order e1.loitation of intellectual .ro.ert)? This de2elo.ment will and should further increase? ;ignificant legal differences and uncertainties in .rotection ma) hinder economies of scale for new .roducts and ser2ices containing co.)right and related rights? $<& The Communit) legal framewor5 for the .rotection of co.)right and related rights must9 therefore9 also %e ada.ted and su..lemented as far as is necessar) for the smooth functioning of the internal mar5et? To that end9 those national .ro2isions on co.)right and related rights which 2ar) considera%l) from one Mem%er ;tate to another or which cause legal uncertainties hindering the smooth functioning of the internal mar5et and the .ro.er de2elo.ment of the information societ) in Euro.e should %e adBusted9 and inconsistent national res.onses to the technological de2elo.ments should %e a2oided9 whilst differences not ad2ersel) affecting the functioning of the internal mar5et need not %e remo2ed or .re2ented? N $4& 0n) harmonisation of co.)right and related rights must ta5e as a %asis a high le2el of .rotection9 since such rights are crucial to intellectual creation? Their .rotection hel.s to ensure the maintenance and de2elo.ment of creati2it) in the interests of authors9 .erformers9 .roducers9 consumers9 culture9 industr) and the .u%lic at large? N $'4& The moral rights of rightholders should %e e1ercised according to the legislation of the Mem%er ;tates and the .ro2isions of the @erne Con2ention NO9P the EIA Co.)right Treat) and of the EIA Aerformances and Ahonograms Treat)? N7 0rticle ( of Directi2e *++'3*4 .ro2ides: 6'? Mem%er ;tates shall .ro2ide authors with the e1clusi2e right to authorise or .rohi%it an) communication to the .u%lic of their wor5s9 %) wire or wireless means9 including the ma5ing a2aila%le to the .u%lic of their wor5s in such a wa) that mem%ers of the .u%lic ma) access them from a .lace and at a time indi2iduall) chosen %) them? N (? The rights referred to in .aragra.hs ' and * shall not %e e1hausted %) an) act of communication to the .u%lic or ma5ing a2aila%le to the .u%lic as set out in this 0rticle?7 $he dis%ute in the main %roceedings and the &uestions referred for a %reliminar' ruling The a..licants in the main .roceedings9 all Bournalists9 wrote .ress articles that were .u%lished in the Gteborgs-Posten news.a.er and on the Gteborgs-Posten we%site? #etrie2er ;2erige o.erates a we%site that .ro2ides its clients9 according to their needs9 with lists of clic5a%le Internet lin5s to articles .u%lished %) other we%sites? It is common ground %etween the .arties that those articles were freel) accessi%le on the GteborgsPosten news.a.er site? 0ccording to the a..licants in the main .roceedings9 if a client clic5s on one of those lin5s9 it is not a..arent to him that he has %een redirected to another site in order to access the wor5 in which he is interested? @) contrast9 according to #etrie2er ;2erige9 it is clear to the client that9 when he clic5s on one of those lin5s9 he is redirected to another site? The a..licants in the main .roceedings %rought an action against #etrie2er ;2erige %efore the ;toc5holms tingsr=tt $;toc5holm District Court& in order to o%tain com.ensation on the ground that that com.an) had made use9 without their authorisation9 of certain articles %) them9 %) ma5ing them a2aila%le to its clients? @) Budgment of '' June *+'+9 the ;toc5holms tingsr=tt reBected their a..lication? The a..licants in the main .roceedings then %rought an a..eal against that Budgment %efore the ;2ea ho2r=tt $;2ea Court of 0..eal&? @efore that court9 the a..licants in the main .roceedings claimed9 inter alia9 that #etrie2er ;2erige had infringed their e1clusi2e right to ma5e their res.ecti2e wor5s a2aila%le to the .u%lic9 in that as a result of the ser2ices offered on its we%site9 #etrie2er ;2erige7s clients had access to the a..licants7 wor5s? #etrie2er ;2erige contends9 in defence9 that the .ro2ision of lists of Internet lin5s to wor5s communicated to the .u%lic on other we%sites does not constitute an act lia%le to affect the co.)right in those wor5s? #etrie2er ;2erige also contends that it did not carr) out an) transmission of an) .rotected wor5Q its action is limited to indicating to its clients the we%sites on which the wor5s that are of interest to them are to %e found? In those circumstances9 the ;2ea ho2r=tt decided to sta) the .roceedings and to refer the following Muestions

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to the Court of Justice for a .reliminar) ruling: If an)one other than the holder of co.)right in a certain wor5 su..lies a clic5a%le lin5 to the wor5 on his we%site9 does that constitute communication to the .u%lic within the meaning of 0rticle ($'& of Directi2e O*++'3*4PR Is the assessment under Muestion ' affected if the wor5 to which the lin5 refers is on a we%site on the Internet which can %e accessed %) an)one without restrictions or if access is restricted in some wa)R Ehen ma5ing the assessment under Muestion '9 should an) distinction %e drawn %etween a case where the wor59 after the user has clic5ed on the lin59 is shown on another we%site and one where the wor59 after the user has clic5ed on the lin59 is shown in such a wa) as to gi2e the im.ression that it is a..earing on the same we%siteR Is it .ossi%le for a Mem%er ;tate to gi2e wider .rotection to authors7 e1clusi2e right %) ena%ling communication to the .u%lic to co2er a greater range of acts than .ro2ided for in 0rticle ($'& of Directi2e *++'3*4R7 (onsideration of the &uestions referred The first three questions @) its first three Muestions9 which it is a..ro.riate to e1amine together9 the referring court as5s9 in essence9 whether 0rticle ($'& of Directi2e *++'3*4 must %e inter.reted as meaning that the .ro2ision9 on a we%site9 of clic5a%le lin5s to .rotected wor5s a2aila%le on another we%site constitutes an act of communication to the .u%lic as referred to in that .ro2ision9 where9 on that other site9 the wor5s concerned are freel) accessi%le? In this connection9 it follows from 0rticle ($'& of Directi2e *++'3*4 that e2er) act of communication of a wor5 to the .u%lic has to %e authorised %) the co.)right holder? It is thus a..arent from that .ro2ision that the conce.t of communication to the .u%lic includes two cumulati2e criteria9 namel)9 an 6act of communication7 of a wor5 and the communication of that wor5 to a 6.u%lic7 $see9 to that effect9 Case C8+<3'' ITV Broadcasting and Others O*+'(P EC#9 .aragra.hs *' and ('&? 0s regards the first of those criteria9 that is9 the e1istence of an 6act of communication79 this must %e construed %roadl) $see9 to that effect9 Joined Cases C,+(3+> and C,*43+> ootball !ssociation Pre"ier #eague and Others O*+''P EC# I4+>(9 .aragra.h '4(&9 in order to ensure9 in accordance with9 inter alia9 recitals , and 4 in the .ream%le to Directi2e *++'3*49 a high le2el of .rotection for co.)right holders? In the circumstances of this case9 it must %e o%ser2ed that the .ro2ision9 on a we%site9 of clic5a%le lin5s to .rotected wor5s .u%lished without an) access restrictions on another site9 affords users of the first site direct access to those wor5s? 0s is a..arent from 0rticle ($'& of Directi2e *++'3*49 for there to %e an 6act of communication79 it is sufficient9 in .articular9 that a wor5 is made a2aila%le to a .u%lic in such a wa) that the .ersons forming that .u%lic ma) access it9 irres.ecti2e of whether the) a2ail themsel2es of that o..ortunit) $see9 %) analog)9 Case C(+83+S $G!E O*++8P EC# I''S'49 .aragra.h ,(&? It follows that9 in circumstances such as those in the case in the main .roceedings9 the .ro2ision of clic5a%le lin5s to .rotected wor5s must %e considered to %e 6ma5ing a2aila%le7 and9 therefore9 an 6act of communication79 within the meaning of that .ro2ision? ;o far as concerns the second of the a%o2ementioned criteria9 that is9 that the .rotected wor5 must in fact %e communicated to a 6.u%lic79 it follows from 0rticle ($'& of Directi2e *++'3*4 that9 %) the term 6.u%lic79 that .ro2ision refers to an indeterminate num%er of .otential reci.ients and im.lies9 moreo2er9 a fairl) large num%er of .ersons $$G!E9 .aragra.hs (< and (>9 and ITV Broadcasting and Others9 .aragra.h (*&? 0n act of communication such as that made %) the manager of a we%site %) means of clic5a%le lin5s is aimed at all .otential users of the site managed %) that .erson9 that is to sa)9 an indeterminate and fairl) large num%er of reci.ients? In those circumstances9 it must %e held that the manager is ma5ing a communication to a .u%lic? None the less9 according to settled case-law9 in order to %e co2ered %) the conce.t of 6communication to the .u%lic79 within the meaning of 0rticle ($'& of Directi2e *++'3*49 a communication9 such as that at issue in the main .roceedings9 concerning the same wor5s as those co2ered %) the initial communication and made9 as in the case of the initial communication9 on the Internet9 and therefore %) the same technical means9 must also %e directed at a new .u%lic9 that is to sa)9 at a .u%lic that was not ta5en into account %) the co.)right holders when the) authorised the initial communication to the .u%lic $see9 %) analog)9 $G!E9 .aragra.hs ,+ and ,*Q order of '> March *+'+ in Case C'(83+4 Organis"os $illogi%is &iacheirisis &i"iourgon Theatri%on %ai Opti%oa%ousti%on Ergon9 .aragra.h (>Q and ITV Broadcasting and Others9 .aragra.h (4&? In the circumstances of this case9 it must %e o%ser2ed that ma5ing a2aila%le the wor5s concerned %) means of a clic5a%le lin59 such as that in the main .roceedings9 does not lead to the wor5s in Muestion %eing communicated to a new .u%lic? The .u%lic targeted %) the initial communication consisted of all .otential 2isitors to the site concerned9 since9 gi2en that access to the wor5s on that site was not su%Bect to an) restricti2e measures9 all Internet users could therefore ha2e free access to them? In those circumstances9 it must %e held that9 where all the users of another site to whom the wor5s at issue ha2e %een communicated %) means of a clic5a%le lin5 could access those wor5s directl) on the site on which the) were initiall) communicated9 without the in2ol2ement of the manager of that other site9 the users of the site managed %) the latter must %e deemed to %e .otential reci.ients of the initial communication and9 therefore9 as %eing .art of the .u%lic ta5en into account %) the co.)right holders when the) authorised the initial communication?

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Therefore9 since there is no new .u%lic9 the authorisation of the co.)right holders is not reMuired for a communication to the .u%lic such as that in the main .roceedings? ;uch a finding cannot %e called in Muestion were the referring court to find9 although this is not clear from the documents %efore the Court9 that when Internet users clic5 on the lin5 at issue9 the wor5 a..ears in such a wa) as to gi2e the im.ression that it is a..earing on the site on which that lin5 is found9 whereas in fact that wor5 comes from another site? That additional circumstance in no wa) alters the conclusion that the .ro2ision on a site of a clic5a%le lin5 to a .rotected wor5 .u%lished and freel) accessi%le on another site has the effect of ma5ing that wor5 a2aila%le to users of the first site and that it therefore constitutes a communication to the .u%lic? "owe2er9 since there is no new .u%lic9 the authorisation of the co.)right holders is in an) e2ent not reMuired for such a communication to the .u%lic? n the other hand9 where a clic5a%le lin5 ma5es it .ossi%le for users of the site on which that lin5 a..ears to circum2ent restrictions .ut in .lace %) the site on which the .rotected wor5 a..ears in order to restrict .u%lic access to that wor5 to the latter site7s su%scri%ers onl)9 and the lin5 accordingl) constitutes an inter2ention without which those users would not %e a%le to access the wor5s transmitted9 all those users must %e deemed to %e a new .u%lic9 which was not ta5en into account %) the co.)right holders when the) authorised the initial communication9 and accordingl) the holders7 authorisation is reMuired for such a communication to the .u%lic? This is the case9 in .articular9 where the wor5 is no longer a2aila%le to the .u%lic on the site on which it was initiall) communicated or where it is henceforth a2aila%le on that site onl) to a restricted .u%lic9 while %eing accessi%le on another Internet site without the co.)right holders7 authorisation? In those circumstances9 the answer to the first three Muestions referred is that 0rticle ($'& of Directi2e *++'3*4 must %e inter.reted as meaning that the .ro2ision on a we%site of clic5a%le lin5s to wor5s freel) a2aila%le on another we%site does not constitute an act of communication to the .u%lic9 as referred to in that .ro2ision? The fourth question @) its fourth Muestion9 the referring court as5s9 in essence9 whether 0rticle ($'& of Directi2e *++'3*4 must %e inter.reted as .recluding a Mem%er ;tate from gi2ing wider .rotection to co.)right holders %) la)ing down that the conce.t of communication to the .u%lic includes a wider range of acti2ities than those referred to in that .ro2ision? In this connection9 it is a..arent9 in .articular9 from recitals '9 8 and < in the .ream%le to Directi2e *++'3*4 that the o%Becti2es of the directi2e are9 inter alia9 to remed) the legislati2e differences and legal uncertaint) that e1ist in relation to co.)right .rotection? 0cce.tance of the .ro.osition that a Mem%er ;tate ma) gi2e wider .rotection to co.)right holders %) la)ing down that the conce.t of communication to the .u%lic also includes acti2ities other than those referred to in 0rticle ($'& of Directi2e *++'3*4 would ha2e the effect of creating legislati2e differences and thus9 for third .arties9 legal uncertaint)? ConseMuentl)9 the o%Becti2e .ursued %) Directi2e *++'3*4 would ine2ita%l) %e undermined if the conce.t of communication to the .u%lic were to %e construed in different Mem%er ;tates as including a wider range of acti2ities than those referred to in 0rticle ($'& of that directi2e? It is true that recital < in the .ream%le to the directi2e indicates that the directi2e does not ha2e the o%Becti2e of remo2ing or .re2enting differences that do not ad2ersel) affect the functioning of the internal mar5et? Ne2ertheless9 it must %e o%ser2ed that9 if the Mem%er ;tates were to %e afforded the .ossi%ilit) of la)ing down that the conce.t of communication to the .u%lic includes a wider range of acti2ities than those referred to in 0rticle ($'& of the directi2e9 the functioning of the internal mar5et would %e %ound to %e ad2ersel) affected? It follows that 0rticle ($'& of Directi2e *++'3*4 cannot %e construed as allowing Mem%er ;tates to gi2e wider .rotection to co.)right holders %) la)ing down that the conce.t of communication to the .u%lic includes a wider range of acti2ities than those referred to in that .ro2ision? ;uch a conclusion is not affected %) the fact9 highlighted %) the a..licants in the main .roceedings in their written o%ser2ations9 that 0rticle *+ of the @erne Con2ention sti.ulates that the signator) countries ma) enter into 6s.ecial agreements7 among themsel2es with a 2iew to granting co.)right holders more e1tensi2e rights than those laid down in that Con2ention? In this connection9 suffice it to recall that9 when an agreement allows9 %ut does not reMuire9 a Mem%er ;tate to ado.t a measure which a..ears to %e contrar) to Union law9 the Mem%er ;tate must refrain from ado.ting such a measure $Case C*<<3'+ #u%san O*+'*P EC#9 .aragra.h 8*&? ;ince the o%Becti2e of Directi2e *++'3*4 would ine2ita%l) %e undermined if the conce.t of communication to the .u%lic were construed as including a wider range of acti2ities than those referred to in 0rticle ($'& of that directi2e9 a Mem%er ;tate must refrain from e1ercising the right granted to it %) 0rticle *+ of the @erne Con2ention? Therefore9 the answer to the fourth Muestion is that 0rticle ($'& of Directi2e *++'3*4 must %e inter.reted as .recluding a Mem%er ;tate from gi2ing wider .rotection to co.)right holders %) la)ing down that the conce.t of communication to the .u%lic includes a wider range of acti2ities than those referred to in that .ro2ision? (osts ;ince these .roceedings are9 for the .arties to the main .roceedings9 a ste. in the action .ending %efore the national court9 the decision on costs is a matter for that court? Costs incurred in su%mitting o%ser2ations to the Court9 other than the costs of those .arties9 are not reco2era%le? n those grounds9 the Court $!ourth Cham%er& here%) rules: rticle )*+, of Directive -..+/-0/1( of the 1uro%ean Parliament and of the (ouncil of -- Ma' -..+

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on the harmonisation of certain as%ects of co%'right and related rights in the information societ', must 2e inter%reted as meaning that the %rovision on a 3e2site of clic4a2le lin4s to 3or4s freel' availa2le on another 3e2site does not constitute an 5act of communication to the %u2lic6, as referred to in that %rovision7 rticle )*+, of Directive -..+/-0 must 2e inter%reted as %recluding a Mem2er State from giving 3ider %rotection to co%'right holders 2' la'ing do3n that the conce%t of communication to the %u2lic includes a 3ider range of activities than those referred to in that %rovision7 O;ignaturesP - Language of the case: ;wedish?

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