It is habitual for internet users to avail themselves of hyperlinks. Millions regularly post links all over the web: news publishers post links to primary source materials while search engines provide links to information scattered across an enormous mass of web pages that comprise the web.

Hyperlinking is a sort of reference mechanism, which the reader of a website can use to follow the reference and view the content provided by that link in another webpage. In plain words, linking provides the ability to jump from one page to another, a characteristic signature of the internet.

In this context, copyright issues concern in large part the creation or facilitation of access by the public to proprietary media content. In light of the scale of the web, it is virtually impossible to ascertain whether all the works at the other end of every link have been authorised by their copyright owners.

The law is hardly settled in this respect. Given the uncertainty created by the differing positions taken by European courts with respect to the issue of linking, a Dutch court made a request for a preliminary ruling from the Court of Justice of the European Union (CJEU) regarding the infringement of copyright through hyperlinking.

The facts of this case arose after Sanoma, the editor and publisher of Playboy magazine, commissioned photos of Britt Dekker, a Dutch TV presenter, that were intended to appear in a future edition of the magazine.

Before their publication, the photos were leaked to an Australian website and, in turn, GS Media posted hyperlinks on its Dutch blog directing viewers to the website to which the photos had been leaked without the consent of Sanoma. Following the refusal of GS Media to remove the hyperlink in question, Sanoma brought infringement proceedings against GS Media in the Dutch courts. Basing itself on the exclusive right of copyright owners to authorise or prohibit any communication to the public of their work, Sanoma claimed that the provision of the hyperlink to the website where the unauthorised photos could be viewed amounted to a breach of copyright. The Dutch court made a preliminary reference to the CJEU to interpret the extent of the exclusive right enjoyed by copyright owners in relation to hyperlinking.

Placing a hyperlink merely directed users to content that was already available

The Luxembourg Court had previously ruled on the issue of hyperlinking. In the Svensson case, it had drawn a distinction between content that was freely accessible and content that was subject to access restrictions – for example, through subscriptions. In relation to the former, the Court held that providing hyperlinks to freely accessible copyright-protected content placed on the internet by the copyright owner or with the copyright owner’s consent would not be copyright infringement. However, where the content was subject to access restrictions, providing a hyperlink that allowed those restrictions to be circumvented would constitute a communication to the public and therefore would amount to copyright infringement.

In the GS Media case, the matter revolved around hyperlinking to copyright content put on the internet without the copyright owner’s consent or knowledge. Dismissing the claims brought by Sanoma that GS Media infringed its copyright, Advocate General Melchior Wathelet put this matter to rest.

The Advocate General opined that providing hyperlinks to freely accessible copyright-protected content placed on the internet without the author’s consent should not be copyright infringement.

He considered that the images of the TV presenter were already freely available on the internet, and therefore placing a hyperlink merely directed users to content that was already available.

Making content available to the public when this is already freely accessible on another website cannot serve as an act of communication to the public. The infringement of copyright would have taken place upon the initial communication, rather than when subsequent links were made to such content. The Advocate General maintained that the knowledge or otherwise that the initial communication to the public of the photos on other websites was unauthorised had no relevance in the context of determining whether there was an act of communication.

The opinion makes it clear however that hyperlinks to circumvent restrictions on access to copyright content constitute infringement. The reasoning of the Advocate General was founded on the fact that the circumvention of access restrictions was due directly to the intervention of the hyperlinker.  It was the hyperlink that made the content available to users, and such intervention made the hyperlink a communication to the public. The CJEU generally follows the opinion of its Advocate General. It remains to be seen whether the Luxembourg Court will follow the bold position taken by the Advocate General in this case.

jgrech@demarcoassociates.com

Josette Grech is adviser on EU law at Guido de Marco & Associates.

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