Another opinion on hyperlinks: No copyright infringement, according to Advocate General

By Martin Miernicki

On 7 April 2016, Advocate General (AG) Wathelet delivered his opinion on the questions referred to the ECJ in GS Media vs. Sanoma Media Netherlands (C‑160/15). The case centers the concept of communication to the public contained in Article 3(1) of the Copyright Directive.

Legal Background

Starting with its decision in SGAE v. Rafael Hoteles (C-306/05), the ECJ has developed an impressive body of case law regarding the communication of protected content to the public. A special subset of cases within this field concerns the question whether the setting of a hyperlink to copyrighted material infringes the exclusive rights of the copyright holder. Relevant case law includes C More Entertainment v. Linus Sandberg (C-279/13), BestWater International v. Michael Mebes (C-348/13)[1] and Nils Svensson v. Retriever Sverige (C-466/12)[2]. In the latter case, the court ruled that the setting of a hyperlink to works which are freely accessible online does not infringe copyright law, unless the link addresses a “new public”, i.e. a public that was not taken into account by the right holders when they authorized the initial upload (paras 24-27).

The questions referred

The case involves a website containing links which direct users to pictures originally made for the Playboy magazine which were illegally uploaded to a website operated by a third party. In this context, the referring court asked the ECJ to give its opinion on the following questions (paraphrased form):

Is there a communication to the public, if a hyperlink is placed on a website which directs users to a protected work uploaded – without the right holder’s consent – to a third party website which is accessible to the general public?

Is it relevant whether the person who sets the link is or ought to be aware of the illegal nature of the upload of the protected work or whether the hyperlink has facilitated access to this work?

The AG’s opinion

In addressing the question, the AG takes a different approach as compared to the ECJ in Svensson. While the court in that case ruled that hyperlinking constitutes an act of communication to the public (Svensson, C-466/12 para 20), AG Wathelet argues that no such act has occurred in the first place, because hyperlinks are not indispensable to access the works in question; the fact that the person setting the link is aware of the illegality of the upload is irrelevant for this appraisal (para 51-63). Consequently, there is no copyright infringement. Additionally, the AG also considers the second cumulative criterion of the concept of communication to the public, namely the “public” element. In this respect, he concludes that the notion of “new public” is not applicable, since the copyright holder had not authorized the upload of the material to the third party website and that the mere facilitation of the access to protected content is not enough to trigger copyright infringement (paras 67-74). As an effective remedy for right holders, the AG refers to injunctions against online intermediaries (paras 80-87).

What can be expected?

It is apparent that the AG wishes to trigger a departure from the ECJ’s ruling in Svensson (cf. para 44). This can be explained by the concerns raised in his opinion that hyperlinks are of fundamental importance for the internet architecture and that a restrictive approach could impair its functioning (paras 77-79). Whether the ECJ accepts these arguments will depend on the question, if the court considers the protection of right holders to be sufficiently safeguarded, even if acts like those in the case at hand are deemed not to infringe copyright. This might be problematic especially in cases where the person providing hyperlinks is well aware of the initial infringement and seeks as his or her primary aim to generate profit from this activity.

In this connection, it should not be forgotten that posting links which help circumvent protection measures necessarily constitutes copyright infringement; this is also highlighted by AG Wathelet (para 73).

[1] Only available in German or French.

[2] For more details on these cases see Transatlantic Antitrust and IPR Developments Issues No. 2/2015, No. 6/2014 and No. 1/2014