Under the Copyright Directive (2001/29/EC) the owner of copyright material has the exclusive right to control any "communications to the public" of their protected works.

In an advisory opinion to the Court of Justice of the European Union ("CJEU"), Attorney General Wathelet (the "AG"), recently considered whether the act of posting a hyperlink directing users to infringing content on a third party website would give rise to copyright infringement.

The AG held that where the infringing content is freely accessible to the public, the act of posting a hyperlink to that content, would not in itself constitute a ‘communication to the public’ as necessary to establish copyright infringement, notwithstanding the fact that the hyperlinks may facilitate or simplify a users’ access to the works in question. This is on the basis that the actual act of making the content available to the public would be deemed to be the action of the person who initially posted the infringing materials.

The hyperlinkers' knowledge of the infringement was considered by the AG to be irrelevant for the purposes of determining whether copyright infringement had occurred.

Rather the AG held that in order to establish an act of communication for these purposes, the posting of the hyperlink must be vital or indispensable for users to benefit or enjoy the works. Accordingly, the posting of hyperlinks which make it possible for users to ‘circumvent restrictions’ put in place on third party websites would constitute an act of communication to the public and may give rise to copyright infringement.

The AG noted however, that while right holders would accordingly be prevented from taking action against website operators that post hyperlinks to freely accessible content they would still have alternative remedies available to them. In particular, the right holder could take an infringement action against the entity who had originally published the unlicensed materials or an injunction against the website operator who initially uploaded the material.

The opinion of the AG stems from a dispute between a Dutch website operator, GS Media and Sanoma, the publisher of Playboy magazine. GS Media posted a link to another website where photographs commissioned by Sanoma were hosted and could be downloaded by internet users.

While the opinion of the AG it is not binding, the CJEU often relies on the opinions of its attorney generals as a basis for its rulings. The CJEU is expected to issue its formal ruling in the case later this year.