Hyperlinks and communication to the public: AGCOM applies the Svensson CJEU’s case law and dismisses proceedings

Application by Italian Communication Authority AGCOM (Autorità per le Garanzie nelle Comunicazioni) of the principle enunciated by the CJEU in the Svensson case has recently resulted in the dismissal of proceedings against an allegedly copyright-infringing website (decision No. 67/14/CSP).

The proceedings started when an individual filed a motion with AGCOM claiming that ten “concept maps”, the copyrights on which he owned, had been made available on a third party website without authorisation.

AGCOM could not initially identify the site manager of the website under review, but inquiries revealed that a company called Aruba S.p.A provided the hosting services. A communication was sent to Aruba and, within the legal time limit, Aruba filed counter-arguments stating that it had nothing to do with the matter. Additionally, Aruba stated that content on two of the relevant URLs had been removed after it had contacted the site manager and that the remaining eight works had not been removed since they were not physically present on the website but connected via hyperlinks to the very website of the copyright owner.

In addition, a communication was received by AGCOM from the site manager confirming the removal of two works and reiterating that the remaining URLs contained links to the claimant’s website. The site manager also expressed his view that it was not an infringement to provide material on the Internet via links to other websites.
In considering whether there was a copyright infringement, AGCOM took the view that the interpretation of the notion of an “act of communication to the public” was relevant. In the Italian legal system, this concept is expressed in Article 16 of Law no. 633/41, (amended by Law of 9 April 2003, n. 68) implementing Articles 3(1) and 3(3) of the Copyright Directive . According to the Directive, any communication to the public of a work must be authorised by the copyright holder.

AGCOM therefore took into account the judgment of the Court of Justice of the European Union (“CJEU”) in the Svensson case (C-466/12, judgment of 13 February 2014), which dealt with clickable Internet links to articles published on other websites, particularly paragraph 27 and 36 of the ruling, according to which: “where all the users of another site to whom the works at issue have been communicated by means of a clickable link could access those works directly on the site on which they were initially communicated, without the involvement of the manager of that other site, the users of the site managed by the latter must be deemed to be potential recipients of the initial communication and, therefore, as being part of the public taken into account by the copyright holders when they authorised the initial communication” and “the provision on a website of clickable links to works freely available on another website does not constitute an act of communication to the public”.

AGCOM found that the principle enunciated in Svensson was applicable in the case at hand, since the links provided on the website www.risorsedidattiche.net now led to the website of the copyright owner where the works were freely available to the public. Therefore, the Authority held that conditions of copyright infringement did not exist.

AGCOM’s decision is important since it reflects AGCOM’s goal to take action in conformity with the CJEU’s case law. An opposite decision could have been problematic since the CJEU stated in Svensson that Member States do not have the right to give wider protection to copyright holders by broadening the concept of communication to the public.