In a recent opinion of Advocate General Wathelet, hyperlinking to unauthorised content on the internet may not amount to copyright infringement. This is the case even if the “hyperlinker” was aware or ought to have been aware that the linked content had not been authorised by the copyright.
Article 3 of Directive 2001/29 states that EU member states must provide authors of copyright works 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.
Recent decisions of the Court of Justice of the European Union (“CJEU”) have had to consider what this exclusive right means in the context of providing links to content on the internet. One decision in particular made it relatively clear that the provision on a website of clickable links to works freely available on another website does not constitute an act of “communication to the public”, or in other words, it’s ok to link to other works and websites on the internet (Svensson and Others ).
Opinion of the Advocate General
In the recent case GS Media v Sonoma Media, Playboy Enterprises, Britt Decker , the hyperlinks were to leaked photographs available on certain websites which clearly had not been authorised by the owner of the copyright in the photographs in the first place.
The Advocate General was of the view that the hyperlinks were not an act of communication to the public since the intervention of the operator of the website which posts the hyperlink is not indispensible to the making available of the photographs in question to users.
This is the case even if the “hyperlinker” was, or ought to have been, aware that the initial communication of those photographs had not been authorised. It is not enough that the hyperlink facilitates or simplifies users’ access to the photographs.
There is certainly scope to be critical of the reasoning of the Advocate General in this Opinion.
However, it seems clear the Advocate General had policy considerations in mind in considering this issue and believed that any other interpretation of Article 3 would significantly impair the functioning of the internet and undermine one of the main objectives of Directive 2001/29, namely the development of the information society in Europe.
The Advocate General was also of the view that, as a general rule, internet users are not aware and do not have the means to check whether the initial communication to the public of a protected work freely accessible on the internet was effected with or without the copyright holder’s consent. Other remedies were available to such copyright holders.
This Opinion is not binding on the CJEU but it is common for the CJEU to follow the opinion of the Advocate General.
For now hyperlinking is ok, but watch this space.