A recent opinion of the Advocate General (AG) in GS Media BV v Sanoma Media Netherlands BV and others C-160/15 has indicated that a hyperlink to content freely available on an unrestricted third party website is not copyright infringement within Article 3(1) of the Copyright Directive (2001/29/EC) (the Directive), despite the content itself being used without the copyright holder's consent.

The dispute considered by the AG concerned the use of a hyperlink by GS Media BV to a website showing photographs of a Dutch television personality without the consent of Sanoma Media Netherlands BV – the publisher of Playboy. The photos were posted illegally prior to the publication in Playboy magazine.

Two criteria have been established to determine if a copyright work has been unlawfully 'communicated to the public' online. There must be: (1) an act of communication of the work; and (2) it must be 'communicated to a public'.

The AG did not consider that hyperlinks to protected content which could be accessed without restriction on a third party website fulfilled the criteria of being 'made available to a public'. The hyperlink simply made access easier. However, if the use of the hyperlink was 'indispensable' to enable access, that would infringe copyright. This test of indispensability as part of the first criteria departs from the previous approach of the Court of Justice of the European Union (CJEU) in Nils Svensson and Others v Retriever Sverige AB C-466/12 (C-466/12) (Svensson) where 'indispensability' was considered under the second limb of the test i.e. was the content communicated to a public.

Although the AG viewed there to have been no infringement on the basis of no act of communication, he clarified that if the photographs were freely available to the public on the third party website, hyperlinking to this content would not make them available to a new public and would not therefore constitute infringement (as set out in Svensson). The position it appears from both Svensson and the AG's opinion would be different if the hyperlink enabled users to circumvent restrictions to access on third party websites.

Whilst the AG has encouraged the CJEU to apply an alternative approach to the controversial assessment in Svensson of what contributes 'an act of communication', the same outcome is likely to be achieved if the CJEU follows the AG's guidance – hyperlinking does not fall within Article 3(1) of the Directive.

Practically, although the guidance will be welcomed by website operators and internet users, this will prevent copyright holders from taking action against website operators posting hyperlinks to their unlicensed, unauthorised content. This is no doubt highly frustrating where website operators can flagrantly promote and facilitate unauthorised use of copyright material. Other remedies remain available against the third party website or the original publishing entity, but these may be more difficult to obtain. For example in this case the identity of the original publisher was impossible to determine.

It will be interesting to see whether the CJEU does follow the AG's opinion and if so, the practical effects flowing from the decision.

Read the AG's opinion in full.