Précis

Since our previous article ‘Has there been a ‘communication to the public’ amounting to copyright infringement?’; the CJEU has delivered its judgement in GS Media v Sanoma Media Netherlands and Others (C-160/15), and while the outcome is undeniably fair based on the facts, the methodology used to arrive at such a decision does not provide the clarification sought by rights holders.

What?

Previous case law for determining if hyperlinking constituted ‘communication to the public’ for determining copyright infringement, has been lacking at best.

Previously, the CJEU held in Svensson v Retriever Sverige AB2 (which was subsequently followed in BestWater3 ) that redirecting to copyright protected works that were already publically available via a hyperlink does not infringe copyright in that particular work. The main point considered by the CJEU was if hyperlinks constituted ‘communication to the public’ under Article 3(1) of Directive 2001/29. If so, authorisation from the author would have been required.

For there to be successful ‘communication to the public’ two elements need to be satisfied; firstly there needs to be an act of communication, and secondly the work must have been communicated to the public.

In Svensson, journalists claimed copyright infringement due to a company using hyperlinks to direct readers straight to their articles. In this particular case, the journalists had given authorisation for their works to be published (such permission included their article being available on a newspaper’s website).

The CJEU held an ‘act of communication’ must be considered in the broadest sense and the ability to make work available to the public, ie the provision of a hyperlink, would amount to an act of communication. The ‘public’ meant an indeterminate number of people (implying a large figure). The hyperlinks were available to all readers of the site, this would appear to satisfy that test of an indeterminate number of people. However, under Article 3(1) the communication had been made by the same technical means (via the internet). The CJEU held there was no communication to a “new public” (people not in consideration when authorisation was given by the rights holder initially) as the journalists permitted their articles to be published on the freely accessible website of the newspaper.

This judgement made it relatively clear that hyperlinking to works freely available on the internet did not amount to copyright infringement provided there was consent when the original work was published and that the hyperlink does not allow the user to circumvent restrictions which would normally mean the work would not be available to them (ie subscription fees). However, Svensson does not address the scenario of when hyperlinks direct to works which are ‘illegal’, in that the author had not provided authorisation for the work to be published, which is what the CJEU assessed, or attempted to assess, in GS Media.

In this case, GS Media published an article with a hyperlink to unpublished photos from a Playboy shoot a month before they were due to be published. The publisher (Sanoma) nor the photographer had given consent for these photos to be published. Sanoma notified GS Media of this and requested that it remove the hyperlink and article from their website. GS Media ignored such notice. Sanoma notified the ‘host’ website where the hyperlink directed users to, who subsequently removed the files. To aggravate the situation, GS Media published a subsequent article detailing the dispute and published a different link, again directing users to a website where the files could be found. This new ‘host’ website again complied with Sanoma’s subsequent request and removed the files. A third article was then published by GS Media where forum users posted various links to where the photos could now be found.

Sanoma and Others brought an action claiming that the posting of the hyperlink by GS Media infringed copyright. The Amsterdam District Court mostly upheld this position but the Amsterdam Court of Appeal set that decision aside on the basis that the photos had already been made public before being put online. However, they also held that GS Media acted unlawfully towards Sanoma and Others by posting the hyperlink as it assisted people to find the photos, who ordinarily would have found it difficult to find these photos.

GS Media appealed to the Supreme Court and Sanoma and Others brought a cross-appeal on the basis of the Svensson decision in that firstly, posting without consent of the author is an infringement of copyright, and secondly the hyperlink was assisting the user to circumvent restrictions on the original hosting site, thus creating a “new public”. The Supreme Court referred three main questions to the CJEU, in summary these were:

  1. If someone publishes a hyperlink to a third party site where a protected work has been made available without the consent of the rights holder, does this constitute a ‘communication to the public’? Does it make a difference if the work was made available to the public in some other way (again without consent) and should the ‘hyperlinker’ ought to have been aware of the lack of consent?
  2. Could there be a ‘communication to the public’ where the website of the ‘hyperlinker’ facilitates users finding works which ordinarily would have been hard to find?
  3. Are there any other circumstances which should be taken into account when determining if there has been a ‘communication to the public’ by means of a hyperlink where the author has not given consent?

The CJEU dealt with these three questions together, they considered “in essence, whether and in what possible circumstances, the fact of posting, on a website, a hyperlink to protected works, freely available on another website without the consent of the copyright holder, constitutes a ‘communication to the public’ within the meaning of Article 3(1) of Directive 2001/29”4.

The CJEU analysed the principles of ‘communication to the public’ and noted the objective and nature of the Directive5, to provide a high level of protection for authors while creating a fair balance of contrasting rights and interests (ie Freedom of Expression).

The CJEU then went on to apply the two distinct elements required in Svensson but went further to say that each case should be analysed individually, introducing complementary and ‘interdependent’ criteria such as the indispensable role of the user, the deliberate nature of any intervention or facilitation and the profit making ability of the ‘hyperlinker’.

It confirmed that, it cannot be inferred that “posting, on a website, hyperlinks to protected works which have been made freely available on another website, but without the consent of the copyright holders of those works, would be excluded, as a matter of principle, from the concept of ‘communication to the public’”6 . What the CJEU failed to clarify was whether hyperlinking to a site with the lack of consent would amount to an unauthorised communication to the public. Instead, and in contrast to the previous decision in Reha Training7 , they focused on the profit-making elements involved.

The CJEU held where a person posts a hyperlink to a work where its publication has not been authorised, in a non-profit making capacity then it is necessary to consider whether the person did not know or cannot have reasonably known that the work was published without consent. Without their full knowledge there would have been no ‘communication to the public’. However, in contrast, where the person, again in a non-profit making capacity, knew or ought to have known that the hyperlink directs to illegal works (ie by being informed by the rights holder or an individual deliberately posting to pre-release material) this is deliberate circumvention of restrictions, therefore is deemed to be a ‘communication to the public’.

Finally, where profit making is involved, then the CJEU took the view that the person or body posting the hyperlink should have carried out the necessary checks or obtained the relevant permissions beforehand. The posting of the hyperlink would therefore have occurred with full knowledge of the protected nature of the work and lack of consent from the rights holder and therefore unless rebutted, would also amount to a ‘communication to the public’.

So what?

In conclusion, the position remains clear that posting hyperlinks to content where such work was made freely available with consent from rights holders does not constitute copyright infringement. However, the position regarding linking to work without the necessary consent is not so clear. The CJEU has introduced the assessment of the state of mind of the ‘hyperlinker’ thus moving away from the concept of strict liability. While the result was undoubtedly correct given the specific facts laid down in GS Media, it will be interesting to see the development and application of this precedent in future cases where the facts are not as clear. This case does little to promote certainty and it will encourage the stakeholders who see Brexit as an opportunity for the UK to reform this area of law and to move away from the CJEU case law.