European Union: Does Hyperlinking To Unauthorised Content Infringe Copyright?

Advocate General Opinion on whether hyperlinking to freely accessible works published without the consent of the rights-holder infringes copyright.

What's the issue?

In 2014, the CJEU ruled in the Svensson case that providing hyperlinks to copyrighted works which were freely available did not constitute a communication to a (new) public for the purposes of Article 3(1) of the Information Society Directive. The works had already been made available to all internet users by being placed on the internet. The decision in Svensson did not conclusively deal with the question of whether this outcome would also apply where the works had been published on the internet without the consent of the copyright holder and it is this which is one of the key issues considered in the Opinion of Advocate General Wathelet (AG) in a reference from the Supreme Court of the Netherlands.

What's the development?

In a request for a preliminary ruling from the Supreme Court of the Netherlands in the case of GS Media BV v Sanoma Media & ors, the AG has opined that posting a hyperlink on one website to another website on which infringing copies of copyright protected works are freely accessible to the public does not constitute an act of communication to the public for the purposes of Article 3(1) of the Information Society Directive.

Expanding on his interpretation of Article 3(1), the AG further held that when a person publishes a hyperlink to an infringing website, it is irrelevant whether that person is or ought to be aware that the infringing copies have been placed on the website without the authorisation of the copyright holder, or whether those works had previously been made available to the public with the copyright holder's consent.

The AG's reasoning appears to be as much based on matters of policy as law. He considered that the use of hyperlinks was "both systematic and necessary for the current internet architecture" and that, if users felt at risk from copyright infringement proceedings each time they posted a hyperlink, they would be put off from doing so, which would be "to the detriment of the proper functioning and the very architecture of the internet, and to the development of the information society".

What does this mean for you?

For the average internet user, the AG's views will come as something of a relief although even if the ultimate ruling takes a different line, it is hard to see rights-holders pursuing individuals linking to unauthorised content. For copyright holders, a CJEU decision which follows the AG Opinion would be disappointing as it would definitively close down a potential avenue for protecting content.

Given the apparent departure from Svensson in this non-binding opinion of the AG, it is not guaranteed that the CJEU will follow it. However, if CJEU accepts the AG's reasoning that a finding of infringement in GS Media would be "to the detriment of the proper functioning and the very architecture of the internet, and to the development of the information society", it may well be inclined to try its best to do so.

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The reference asked the CJEU to rule on the following issues:

  • Does the provision of a hyperlink to a third party website which is accessible to the general internet public and on which copyright works are made available to the public without the copyright owner's authorisation constitute an act of communication to the public for the purposes of Article 3(1) of the Information Society Directive?
  • Does it make a difference if the work has not been previously communicated to the public with the consent of the rights-holder? Should it be taken into consideration whether the hyperlinker is or ought to be aware of this or of the fact that the rights-holder does not consent to the placing of the work on the website?
  • Does it make a difference if the linked to work is not easily findable on the internet and the hyperlinking makes it easier to find, thereby introducing it to a new public, and how relevant is it whether the hyperlinker knows or ought to know this to be true?
  • Are there any other circumstances which should be taken into account when determining whether there is deemed to be a communication to the public if, by means of a hyperlink, access is provided to a work which has not previously been communicated to the public with the consent of the rights-holder?

The AG opined that:

  • hyperlinking to a website containing freely available copyrighted works which are there without the authorisation of the rights-holder does not constitute an act of communication to the public;
  • whether or not the hyperlinker knows or ought to know that the works are on the website without the authorisation of the rights-holder is not relevant;
  • a hyperlink which makes the copyrighted material more easily accessible does not constitute a communication to the public for the purposes of Article 3(1).

The AG did suggest that providing a hyperlink which constituted an indispensable intervention without which internet users could not access the work (for example by circumventing a paywall), might constitute a communication to the public.

The AG's finding that it was irrelevant whether the infringing copies linked to were of works that had previously been made available to the public with the copyright holder's consent appears to contradict the finding of the Swedish Court of Appeal in Nils Svensson and ors v Retriever Sverige AB, where it was held, following a reference to the CJEU, that the owner of a website could, without the authorisation of the copyright holders, redirect internet users, via hyperlinks, to protected works that had been made available on a freely accessible basis on another site by the right holder. A similar reference was made by the German Supreme Court in BestWater International v Michale Mebes, Stefan Potsch, which concerned the embedding of links in a third party website. The AG noted that the question referred to the CJEU for a preliminary ruling in BestWater did not specifically concern the absence of authorisation. However, the German Court's interpretation of the CJEU's preliminary ruling was that framing of a video on one website that is hosted on another website would only be lawful where the original was uploaded to the hosting website with the right-holder's permission.

However, a distinction can perhaps be drawn between the facts in the current case and Svensson due to the hyperlinks used in GS Media referring users to a sub page of the website filefactory.com containing a zip-file with the images, rather than to the infringing images themselves. Opening a zip-file and accessing the infringing copies would then require the user to click again on the specific image file to open it. Therefore the hyperlinks did not link directly to infringing copies. If this distinction is valid, this ruling won't necessarily apply to embedding services or to services which link directly to an infringing work (for example, if a music track is played automatically form a linked-to service when the link is clicked on).

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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