The ECJ was asked to determine whether providing unauthorised hyperlinks to a third-party website is a "communication to the public" under Article 3(1) of the Copyright Directive (2001/29/EC) (the Directive) (Article 3(1)) (see box "Previous decisions").

The ECJ concluded that:

The decision clarifies that, if a website makes content accessible to a public who could not have accessed it before, then this will be a new public and the use will infringe Article 3(1). For example, hyperlinks would be directed to a new public if their use circumvented restrictions on the third-party website that had been put in place to protect works and restrict public access (for example, on a subscription-only website) since these users would not have been contemplated by the copyright holders when originally posting their works on the third-party website.

However, if the content was already freely accessible to a public with the authorisation of the copyright owner, then there would be no new access being given to the work and, therefore, no new public.

The ECJ also made clear that EU member states do not have the right to give wider protection to copyright holders by broadening the concept of "communication to the public" to construe it to cover a wider range of activities than those referred to in Article 3(1). That would have the effect of creating legislative differences and, accordingly, legal uncertainty, when the Directive is specifically intended to remedy those problems.

The decision will benefit aggregation websites, which provide ease of access to publicly accessible material or the simple use of hyperlinks as references. However, where aggregation websites link to material that is not freely accessible, such as subscription-only websites, this will be infringing. Aggregation websites already use technical measures to prevent access by non-subscribers and, in most cases, the links will simply take non-subscribers to a subscription page, while subscribers will get through to the underlying material. However, these websites will need to take care not to create links that allow circumvention of website access restrictions.

Copyright owners may be surprised by the ECJ's conclusion that framing is not preventable using the Article 3(1) right. However, its decision could be seen as a form of exhaustion of rights where material is posted on the internet without access restrictions and with the authorisation of the copyright holder.

A stumbling block for the application of Svensson may be the definition of the public to whom the initial authorised communication was intended to be made by the copyright owner. This may be a matter of practical fact; that is, whether or not it was freely accessible, which is much easier to determine than the public "contemplated" or "taken into account" by the copyright owner.

However, the ECJ did not comment on a number of questions that may arise; for example, where anti-circumvention measures fail, should the person creating the link to what appears to be a freely accessible website have to bear the consequences? What role is there for website terms and conditions, which often purport to require those accessing the website to seek authorisation for the creation of links to its content? Would such contractual provisions be included in a consideration of what is freely available?

The ECJ did address one problematic issue: the provision of a link to a freely accessible website that later becomes a restricted access website. Once the website or material is restricted, a link to it will be a communication to the public, and would therefore be protected by Article 3(1).

For both linking and framing, copyright holders will now need to consider what other avenues there may be for protection. In Svensson, both parties accepted that the hyperlinked articles were freely accessible on the internet. It therefore remains to be seen what "freely accessible" means in practice. While a pay wall should preclude content from being freely accessible, it is less clear whether mere registration to access a website, or limitations placed in a website's terms and conditions, will be sufficient. Copyright owners may also want to consider passing off or unfair competition as avenues to prevent unwanted linking and framing to their material.

Two other cases asking similar questions to those in Svensson have been referred to the ECJ, which may provide further enlightenment in this difficult area (C More Entertainment AB v Sandberg, C-279/13; BestWater International GmbH v Mebes, C-348/13).

The Meltwater reference is also outstanding (Public Relations Consultants Association Ltd v The Newspaper Licensing Agency Ltd and others; see News brief "Meltwater and digital copyright: where do we stand?"). This will decide whether the copies made on a computer in the course of browsing are: temporary; transient or incidental; and an integral and essential part of the technological process within the meaning of Article 5(1) of the Directive, and therefore non-infringing. If the ECJ decides that they are, there will be few avenues left to copyright holders to prevent simple aggregation, and viewing, of material that has been placed on the internet in a freely accessible form with their authorisation, even if it is later framed within a third-party website.