Links A-OK - Hyperlinking to Infringing Material Online is OK, Says AG Wathelet

Since the CJEU's decision in Svensson the fate of hyperlinking in a European context has been up in the air, especially when it comes to copyright infringing materials and directly linking to that content. This is an incredibly important issue, and one that might have ramifications beyond our wildest imaginations, leading to great issues to how the Internet operates in today's world. While the CJEU deliberates its decision in the matter, Advocate General Wathelet provided us with a preview on the potential swing of the CJEU's vote in an opinion that was awaited by many.

The case of GS Media BV v Sanoma Media Netherlands BV dealt with the sharing of images online, specifically linking to images that have been deemed to infringe copyright. Sanoma Media, the publisher of the famous magazine Playboy, had commissioned a photographer to take photos for the magazine of Britt Dekker, a Dutch TV personality. Prior to their publication in Playboy the photos were leaked, and found their way onto an Australian file data storing website Filefactory. These images were then published on the website of a Dutch tabloid magazine, GeenStijl, who linked directly to the photos' location on Filefactory (where they could be downloaded as a zip file). Despite Sanoma's demands to do so, GeenStijl refused to remove the link to the website, although they were eventually removed from Filefactory. After pursuing GS Media through the courts, GeenStijl repeatedly posted new links to the photos in subsequent articles about the litigation, and the matter eventually ended up for the CJEU to decide.

The questions referred to the CJEU essentially dealt with whether the sharing of a hyperlink on another website containing infringing materials would be a 'communication to the public' under the InfoSec Directive.

In his opinion, AG Wathelet summarized the first question asked from the court as "...whether Article 3(1) of [the] Directive... must be interpreted as meaning that the provision on a website of a hyperlink to another website operated by a third party, which is accessible to the general internet public and on which works protected by copyright are made available to the public, without the authorisation of the copyright holder constitutes an act of communication to the public". Additionally, the Advocate General had to give an opinion on whether this question would be impacted by knowledge on part of the sharing party as to the lack of consent to share the content, and whether the previous publication of the work (or lack thereof) is of any relevance.

What remained a point of contention in the case is the findings in both the Svensson and BestWater cases, which the Advocate General first addressed. What both of the cases ultimately boiled down to was that the provision of hyperlinks to works that are freely available would not amount to a 'communication to the public', and therefore escapes infringement. Authorization of the initial publication was never an issue (although not approved in BestWater), or seemed to affect both decisions according to his opinion.

Ultimately, the Advocate General looked at the two criteria set out to establish a communication to a public, meaning looking at whether there has been 'an act of communication', and that it has been done to a 'public' (or a new public, considering Svensson).

Some links can lead to unsavory results

In answering the first criterion, the Advocate General took the position that the provision of a hyperlink to another website containing infringing works would not be an act communication, explaining that: "Although it is true that hyperlinks posted on a website make it much easier to find other websites and protected works available on those websites and therefore afford users of the first site quicker, direct access to those works, I consider that hyperlinks which lead, even directly, to protected works do not ‘make available’ those works to a public where the works are already freely accessible on another website, but merely facilitate the finding of those works". The Advocate General therefore distinguishes between the provision of the materials, and the finding or accessing of those materials, even if they infringe or not. What seems important in his opinion is the initial provision of the works, and not their subsequent sharing even via hyperlinks. He further iterated this position through the decision in Football Association Premier League and Others, where the intervention of the materials (and their subsequent provision for the first time as infringing copies) was key, which a hyperlink would not do, as it does merely facilitate an already available work. He concluded that "...in order to establish an act of communication, the intervention of the ‘hyperlinker’ must be vital or indispensable in order to benefit from or enjoy works". In his opinion GS Media therefore did not communicate the works, as their intervention was not indispensable in order to access the infringing works. He also considered that, as the question was answered in the negative, the question of a lack of authorization (and knowledge thereof) was irrelevant, even through 'nefarious' intentions.

The Advocate General then considered the question of whether the act of communication was done to a 'public'. He outright rejected the applicability of the 'new public' consideration borne in Svensson, deeming it not applicable in this instance (and potentially in other instances as well as a result). This would only be applicable when the work has been authorized, and thus accessed illegally for the benefit of a new public (i.e. from behind a pay-wall). Even if it applied in the event of a lack of authorization, the above intervention considerations would still apply, negating the assessment as the hyperlink would not add to the potential public that already could access the materials. He concluded that question 2 would therefore be answered in the negative.

The Advocate General made general observations as to this issue and the Internet: "...aside from the fact that, in principle, the posting of the hyperlinks in the main proceedings does not, in my view, constitute a ‘communication to the public’... I consider that any other interpretation of that provision would significantly impair the functioning of the Internet and undermine one of the main objectives of [the] Directive... namely the development of the information society in Europe. Such an interpretation could also distort the ‘fair balance of rights and interests between the different categories of rightholders, as well as between the different categories of rightholders and users of protected subject-matter’". He further emphasized the necessity of hyperlinking for the functionality of the Internet, and the lack of ability of Internet users to check sources of materials and whether they were authorized or not. If the posting of hyperlinks were to infringe copyright, users would not post them as readily, which would impede the development of the worldwide web.

The opinion leaves the matter quite open, and departed from the CJEU's previous considerations in Svensson and BestWater. Whether the CJEU follow the Advocate General's opinion remains to be seen, but as he wisely raised in his opinion, hyperlinking is essential to how the Internet works, and a balance has to be struck between the provision of links, but the protection of intellectual property from those seeking to blatantly benefit or even undermine this privilege. This writer will await the CJEU's decision with great intrigue, and hopes they will follow along the lines of the Advocate General.

Source: IPKat