Summary

  • Advocate General Wathelet has opined that hyperlinking to protected works freely available on another website is not in itself an infringement of Article 3(1) of Directive 2001/29.  Wathelet's analysis differed to that set out in Svensson.     
  • Whilst Svensson said that the communication must be aimed at a "new public" (a public not contemplated by the copyright holder at the time the initial communication was authorised), the AG held that this criterion could only be applicable where the copyright holder had actually authorised the initial communication.   
  • As the works were freely accessible on another website, the intervention of the hyperlinker was not “indispensible” to the making available of the material, and was not therefore a communication to the public.  
  • A hyperlink that circumvented restrictions of another website would constitute “an indispensible intervention”.  
  • It was not sufficient that the hyperlink greatly facilitated access to the infringing material.   
  • It was not relevant that the hyperlinker knew that the websites to which it was linking were in violation of the photographer’s rights.

Background

  • The defendant in the case was GS Media BV, operator of the GeenStijl website, and the claimant was Sanoma Media Netherlands BV, publisher of Playboy magazine.  
  • Sanoma had commissioned a photoshoot of Dutch celebrity, Britt Dekker. The resulting photos were leaked, and were apparently freely available (although the evidence in relation to this was not entirely clear) on a site called Filefactory.com.  
  • GS Media splashed a report about the photos, and included a link to the Filefactory site. Sanoma demanded the removal of the hyperlink. Although GS Media refused to comply, the photos were removed from Filefactory.   
  • GS Media then published further links to other sites at which the photographs could now be found.  
  • Sanoma brought an action for copyright infringement in the District Court of Amsterdam.  
  • Whilst Sanoma's claim was largely upheld, the case was eventually appealed to the Supreme Court. The Supreme Court said that neither Svensson nor Bestwater made it clear if there had been a communication to the public if the work had previously been published without the rights holder's consent. It consequently referred a number of questions to the CJEU.

Detail of the Opinion

  • In summary the questions referred were:   
    • Does a hyperlink to a freely accessible third-party website on which copyright works were uploaded without the permission of the copyright holder constitute a communication to the public?
    • Does it make any difference if the works had also not previously been communicated, with the right-holder’s consent, in some other way?
    • Is there a communication to the public if the hyperlink greatly facilitates the finding of the work?
    • Is the hyperlinker’s knowledge a factor?
    • Are there other circumstances that should be taken into account?   
  • The AG noted that Svensson had said that the provision of clickable links to works freely available on another website does not constitute an "act of communication to the public". He further noted that the operative part of the judgment in Svensson did not consider the issue of whether or not the copyright holder had authorised the initial making available of the protected work.   
  • Analysing the first of the questions, the AG observed that according to settled case-law Article 3(1) of the InfoSoc Directive had two cumulative criteria:  
    • An "act of communication of a work"; and
    • The communication of that work to a "public".   
  • Article 3(1), he said, provided that communication to the public included, in a broad sense, "making available to the public".  
  • In the AG's opinion, the provision of a hyperlink did not have this effect: 

“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”

  • In support of his view, he introduced the concept from FAPL of whether or not the intervention of the hyperlinker had been indispensable to the protected works being made available.  
  • As the photographs were freely available on another website, the intervention of GS Media in providing the hyperlink was not indispensable to the photographs being made available. There was therefore no act of communication.  
  • Without an act of communication, the remaining questions were of no relevance. Nevertheless, the AG considered the criterion of communication of a work to a "public", and particularly the Svensson formulation that the communication had to be to a "new public". This he found to be applicable only where the copyright holder had authorised the initial communication (i.e. a particular public was in the copyright holder's contemplation when the authorisation was made). In the absence of such an authorisation, the concept of a "new public" was not relevant.  
  • If the links had circumvented restrictions and made the works available where previously they were not, this would have constituted a communication to the public.  
  • The concept of “communication to the public” should not include a wider range of activities than those to which Article 3(1) of Directive 2001/29 refers.

Comment

  • If the opinion is followed by the CJEU, it would represent something of a departure from Svensson.   
  • The AG’s opinion is given very firmly on the basis of public policy – “any other interpretation… would significantly impair the functioning of the Internet." He suggested that rights holders’ remedies lay with proceedings against the original infringer, or the websites that act as intermediaries. However, the facts of the case highlight the flaws in this approach. The original infringer was never identified, and the photographs migrated across the internet more quickly than they could be taken down.  
  • We await the CJEU's decision - it will be interesting to see whether it follows the AG opinion or not.