Huib Berendschot November 16 2015 Hyperlinks and copyright: courts seek ECJ guidance AKD | Intellectual Property - Netherlands Huib Berendschot Intellectual Property IntroductionPast ECJ decisionsRecent references to ECJCommentIntroductionThe relationship between hyperlinking and copyright is much debated and has been the subject of various court judgments. The outcome of such cases depends on four factors:the accessibility of the content (ie, whether it is freely accessible or behind a paywall or otherwise restricted);whether the content was uploaded lawfully or unlawfully;whether the link qualifies as communication to the public; andwhether the rights holder's permission was required or obtained for the link.Regarding the act of 'communication to the public', Article 3 of the EU Copyright Directive (2001/29/EC) provides:"Member States shall provide authors with the exclusive right to authorise or prohibit any communication to the public of their works, by wire or wireless means, including the making available to the public of their works in such a way that members of the public may access them from a place and at a time individually chosen by them."The Dutch courts recently made two new references to the European Court of Justice (ECJ) on the issue of hyperlinking and exercise of copyright.Past ECJ decisionsThe key ECJ decisions regarding this issue are Svensson (C-466/12, February 13 2014) and BestWater, (C-348/13, October 21 2014).Svensson – linking to lawfully published and freely accessible informationIn Svensson the linked information was lawfully placed and freely accessible. The ECJ was asked whether a clickable link to content on a website constitutes a communication to the public where the link is provided by someone other than the copyright holder.The ECJ held that a website's provision of clickable links to works that are freely available on another website does not constitute communication to the public. It also held that EU member states are precluded from giving wider protection to copyright holders by ruling that the concept of communication to the public includes a wider range of activities than those set out in Article 3 of the EU Copyright Directive.BestWater – linking to lawfully published but not freely accessible informationIn BestWater the information was lawfully provided, but was not freely accessible. In this case, the following question was raised before the ECJ:"Does the embedding, within one's own website, of another person's work made available to the public on a third-party website, in circumstances such as those in the main proceedings, constitute communication to the public… even where that other person's work is not thereby communicated to a new public and the communication of the work does not use a specific technical means which differs from that of the original communication?"The ECJ held that the mere fact that a protected work which is freely available on a website is inserted into another website by means of a link using the 'framing' technique, such as that used in the case in the main proceedings, cannot be classified as 'communication to the public' as defined by Article 3 of the EU Copyright Directive, since the work at issue is not transmitted to a new public or communicated using a specific technical method that differs from the original communication.Importantly, the question put to the ECJ in Bestwater assumed that the other person's work was not thereby communicated to a new public. This places an important restriction on the ECJ's decision. One may assume that if the work is considered to be communicated to a new public, the rights holder's permission is then required for the hyperlink. There is a 'new public' if the target audience is different from the audience targeted by the original communication.Recent references to ECJOn April 7 2015 the Supreme Court referred a question relating to GS Media BV v Sanoma Media Netherlands BV to the ECJ. On September 30 2015, as part of an interim judgment in a case involving the BREIN Foundation, the Midden-Nederland District Court referred a number of questions to the ECJ.GS Media – unlawfully placed content which is freely accessible This reference (C-160/15) is seeking clarification on the issue of unlawfully placed content which is freely accessible online and which is communicated to the public without the copyright holder's consent. The question is whether such unlawfully placed publication, made available to the public by means of a hyperlink, constitutes communication to the public by the owner of the site on which the hyperlink is placed.Since in this case the initial uploading on the site to which the hyperlink directed was unlawful, it would seem logical that such hyperlink would constitute copyright infringement in the absence of the copyright holder's consent. However, the ECJ has the final say here. Judgment is expected towards the end of 2016.A key element of the final answer is the importance of whether the 'hyperlinker' is or ought to be aware of:the copyright holder's lack of consent for placement of the work on the third-party website; andthe fact that the work has not previously been communicated, with the copyright holder's consent, to the public in some other way.BREIN – unlawfully placed content which is freely accessibleIn this case, the court asked the ECJ whether Article 3 of the EU Copyright Directive implies that there is a communication to the public if a party sells a product – such as a media player – on which it has installed hyperlinks to websites that direct to protected works without the rights holders' consent.It further asked whether the answer would differ depending on:whether the copyright-protected works were previously disclosed to the public online at all or only behind a paywall with the rights holder's consent;whether the elements containing the hyperlinks to those websites can also be installed on the media player by users themselves; andwhether the websites on which access is provided to protected works without the rights holders' consent can also be located and accessed by the public without the media player.CommentIt is clear that hyperlinking to unlawfully placed content at a site which is not freely accessible constitutes a communication to the public, and that subsequent use of that work through linking requires the rights holder's consent.Whereas Svensson and BestWater provide answers on hyperlinking to lawfully placed content (whether freely accessible online or not), they do not answer the questions raised in GS Media and BREIN concerning the circumstances under which hyperlinking to unlawfully placed content which is freely accessible online constitutes a communication to the public.For further information on this topic please contact Huib Berendschot at AKD by telephone (+31 88 253 5915) or email ([email protected]). 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