AG Wathelet: linking to unlicensed content should not be a copyright infringement per se

Britt Dekker for Playboy

Linking to unlicensed content? This is not in itself an infringement of Article 3(1) of Directive 2001/29 (the InfoSoc Directive), said this morning Advocate General (AG) Melchior Wathelet in his Opinion in GS Media, C-160/15.

This is big news, in that the AG advised the Court of Justice of the European Union (CJEU) do depart significantly from the jurisprudence inaugurated with the (in)famous 2014 decision in Svensson [here for Kat-coverage].

Background

As readers will remember, this reference for a preliminary ruling from the Dutch Supreme Court has arisen in the context of litigation between the publisher of Playboy (Sanoma) and GS Media, over provision by the latter - through GeenStijl.nl - of hyperlinks to other websites hosting leaked photographs of Dutch starlet Britt Dekker. These photographs were due for publication in a 2011 issue of Playboy.

More specifically, in 2011 [prior to the publication of the Playboy issue in question] GS Media published a report with the title ‘[obscenity] leaked! Nude photos ... Dekker’. The report also included part of one of the photographs in the top left-hand corner (‘the cutout’). The report ended with the following words: ‘And now the link with the pics you’ve been waiting for. Whoever [obscenity] first, [obscenity] first. HERE. ...’. By clicking on a hyperlink, indicated by ‘HERE’, readers were directed to an Australian data-storage website called Filefactory.com [where the photographs appeared to be freely accessible, although the AG noted that whether this was the case is not entirely clear: see para 71 of the Opinion]. By clicking on the following hyperlink, they could open a new window which contained the button ‘DOWNLOAD NOW’. By clicking on the button, the readers opened a file in zip format containing 11 files in pdf format, each of which contained one of the photographs.

Despite Sanoma's demands, GS Media refused to remove the hyperlink in question (although the photographs were removed from the Filefactory.com website), and later on published two further reports with new hyperlinks to Dekker's photographs.

AG Wathelet

GS Media was successfully sued before the Amsterdam District Court and the Amsterdam Court of Appeal, although these courts considered different aspects. The former held that by posting those hyperlinks, GS Media’s conduct had been unlawful because it encouraged visitors to GeenStijl to view the photographs illegally posted on Filefactory.com which, without those hyperlinks, would not have been easy to find. In contrast, the Court of Appeal held that, on the one hand, GS Media had infringed copyright by posting a cut-out of one of the photographs on the GeenStijl website but, on the other hand, had not made the photographs available to the public by posting the hyperlinks on its website. 

The decision of the Court of Appeal was appealed before the Supreme Court, which decided to stay the proceedings and seek guidance from the CJEU.

The reference for a preliminary ruling

As clarified by the AG, in a nutshell what the Dutch Supreme Court is seeking guidance on is whether:

• Article 3(1) of the InfoSoc Directive must be interpreted as meaning that the provision on a website of a hyperlink to another website operated by a third party, which is accessible to the general internet public and on which works protected by copyright are made available to the public, without the authorisation of the copyright holder constitutes an act of communication to the public.
• The fact that the person who posts the hyperlink to a website is or ought to be aware of the lack of consent by the copyright holder for the initial communication of the works on that website is important for the purpose of Article 3(1) of this directive. 
• The fact that a hyperlink has facilitated access to the works in question is relevant in accordance with Article 3(1) of this directive.

The AG analysis

The AG noted at the outset that this reference comes in the wake of the CJEU judgments in Svensson and BestWater [here].

No need to ask first

No need for the rightholder's authorisation

The AG began his analysis by noting that, whilst it is true that in Svensson the CJEU often referred to the rightholder's authorisation to the initial communication, "no reference is made in the operative part to the issue of whether or not the copyright holder authorised the initial making available of the protected work." [para 39; this, frankly, is a bold move on the side of the AG, who is clearly suggesting that the CJEU should depart from Svensson, without explicitly saying so - at least in this part of the Opinion (keep reading) - and by making actually the Opinion look like it was in line with Svensson and its progeny]

Furthermore, continues the Opinion, in BestWater the relevant work [a YouTube video] the link in question referred to was not even published with the authorisation of the copyright holder. However, in accordance with its decision in Svensson the Court ruled that Article 3(1) of the InfoSoc Directive "had not been infringed" [para 40; here the language is slightly imprecise, as it incorrectly suggests that the CJEU acted as a court on the merits, while in the case of references for a preliminary ruling the Court only provides the correct interpretation of relevant provisions of EU law, leaving it to the referring court to rule on the merits, ie infringement].

"Consequently, the order in BestWater ... seems to indicate that the fact that the copyright holder did not authorise the initial communication to the public was not relevant for the purposes of Article 3(1)" [para 41].

This said, in order to answer the questions referred by the Dutch court, the AG reviewed the two relevant cumulative criteria [ie: (1) an act of communication of a work; (2) to a (new) public] under Article 3(1)] in order to address the observations of Portugal and the Commission, which had held the view that to have an act of communication an actual transmission [pursuant to Recital 23 in the preamble to the InfoSoc Directive, and also the pre-Svensson Opinion of the European Copyright Society] of a work is necessary.

An act of communication requires an intervention

The AG recalled that in Svensson the CJEU held that "for there to be an “act of communication”, it is sufficient, in particular, that a work is made available to a public in such a way that the persons forming that public may access it, irrespective of whether they avail themselves of that opportunity".

According to the AG this approach is not correct in relation to hyperlinks:

"Although it is true that hyperlinks posted on a website make it much easier to find other websites and protected works available on those websites and therefore afford users of the first site quicker, direct access to those works, 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. As the Portuguese Republic states in its observations, the act which constitutes the actual ‘making available’ was the action by the person who effected the initial communication. [para 55]

The AG supported this view by referring to the FAPL judgment [here], in which the CJEU held that without the intervention, for example, of a hotel to offer a television signal in its rooms via television sets, the work would not have been accessible to the hotel’s customers [para 56].

It would follow that "in order to establish an act of communication, the intervention of the ‘hyperlinker’ must be vital or indispensable in order to benefit from or enjoy works." [para 57]

As a result,

"hyperlinks posted on a website which direct to works protected by copyright that are freely accessible on another website cannot be classified as an ‘act of communication’ within the meaning of Article 3(1) of Directive 2001/29 since the intervention of the operator of the website which posts the hyperlink, in this case GS Media, is not indispensable to the making available of the photographs in question to users, including those who visit the GeenStijl website." [para 60]

It follows that, lacking one of the two necessary conditions, ie an act of communication, there is no issue of Article 3(1) of the InfoSoc Directive even coming into consideration. 

The linker's motives or awareness of unlawful nature of the content are irrelevant

The AG did not stop here, and appeared to reject the very idea that psychology should be part of copyright. 

In fact, he held that "in the absence of an act of communication within the meaning of Article 3(1) of Directive 2001/29, GS Media’s motives and the fact that it was or ought to have been aware that the initial communication of those photographs on the other websites had not been authorised by Sanoma or that the photographs had also not been previously made available to the public with Sanoma’s consent are not relevant under that provision." [para 63]

The 'new public' criterion is rubbish inapplicable in this case

Although the first of the two cumulative conditions required for the applicability of Article 3(1), ie an act of communication, would not be met in this case, the AG nonetheless considered the second condition that communication of a work is to a public.

The AG rejected the 'new public' criterion adopted in Svensson, and held that "the criterion of a new public is applicable only where the copyright holder has authorised the initial communication to the public. Since there is no such authorisation in the main proceedings, the criterion of a ‘new public’ is not applicable." [para 67]

Circumventing links are not OK

The AG then noted that "if a hyperlink makes it possible for users of the site on which it appears to ‘circumvent restrictions’ put in place on third-party websites to limit access to protected works, the hyperlink in question constitutes an indispensable intervention without which those users could not enjoy the works. Accordingly, that intervention makes the works in question available to visitors to the website in question, in this case visitors to the GeenStijl website, and therefore constitutes an act of communication to a public which must be authorised by the copyright holder pursuant to Article 3(1) of Directive 2001/29." [para 73]

No other circumstances should be taken into account

The AG then considered whether there are other circumstances which should be taken into account when answering the question whether there is deemed to be a ‘communication to the public’ if, by means of a hyperlink, access is provided to a work for which authorisation has never been given by the copyright holder for it to be made available to the public on a website.

He answered in the negative, observing that a Member State cannot give wider protection to copyright holders by laying down that the concept of ‘communication to the public’ includes a wider range of activities than those referred to in that provision.

The Svensson decision
as summarised by the AG

Linking within the scope of copyright? Not a good idea in general

At paras 77 and 78 the AG provided a more general observation: 

"[A]side from the fact that, in principle, the posting of the hyperlinks in the main proceedings does not ... constitute a ‘communication to the public’ within the meaning of Article 3(1) of Directive 2001/29, ... any other interpretation of that provision 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. Such an interpretation could also distort the ‘fair balance of rights and interests between the different categories of rightholders, as well as between the different categories of rightholders and users of protected subject-matter’.

It is a matter of common knowledge that the posting of hyperlinks by users is both systematic and necessary for the current internet architecture ... [A]s 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. If users were at risk of proceedings for infringement of copyright under Article 3(1) of Directive 2001/29 whenever they post a hyperlink to works freely accessible on another website, they would be much more reticent to post them, which would be to the detriment of the proper functioning and the very architecture of the internet, and to the development of the information society."

The AG also added [para 79] that "extending the concept of ‘communication to the public’ to cover the posting of hyperlinks to protected works freely accessible on another website would require action to be taken by the European legislature."

Remedies available to copyright holders: suing those who posted the works without consent or seeking an injunction

Finally, the AG noted excluding hyperlinks from the scope of copyright does not mean depriving copyright holders of remedies to enforce their rights. 

The relevant rightholder could in fact:

• sue the person who effected the initial communication to the public without his authorisation. The AG however conceded that "as that person is unknown in this case, such proceedings hold no real interest for the copyright holder" [para 81]; or
• seek an injunction pursuant to Article 8(3) of the InfoSoc Directive and the third sentence of Article 11 of the Enforcement Directive against operators of websites such as Filefactory.com and Imageshack.us which act as intermediaries within the meaning of those provisions, since their services are likely to be used by users of such websites to infringe intellectual property rights [paras 82 ff]. 

Conclusion

The Opinion of AG Wathelet could signal a major departure from the approach taken in Svensson, should the CJEU agree with it.

The broader practical considerations undertaken at paras 77 to 79 appear sensible, although it may be doubtful whether linking to unlicensed content freely accessible on a third-party website should be always considered outside the scope of copyright protection, especially in egregious cases (eg websites that provide links to unlicensed works and have this at the core of their business models).

On a final note, it is surprising or - rather - depressing to observe that after Svensson, after BestWater, GS Media is the first linking case relating to Article 3(1) of the InfoSoc Directive on which the CJEU has sought an AG Opinion. Perhaps the mess created by Svensson could have been avoided simply by thinking that the issues at stake there were not as straightforward as NOT to require some careful analysis by means of an AG Opinion prior to the actual decision.