European Court Considers Whether Hyperlinking to Unauthorised Content on Third-party Websites Infringes Copyright
By Alessandra Feller and Alessia Castelli
Following the provision of a recent Advocate General opinion, the Court of Justice of the European Union (CJEU) is expected to give further guidance on hyperlinking soon.
A dispute arose in the Netherlands between Sanoma Media Netherlands BV (and others) and GS Media in relation to the posting of website hyperlinks to third party sites which contained photographs the communication of which was not authorised by Sanoma and the other right holders.
Specifically, the Dutch Supreme Court has referred certain questions to the CJEU, asking whether
- hyperlinks to a freely accessible third party website which displays material without the consent of the copyright owner should be considered a “communication to the public” within the meaning of Art 3(1) of the Directive no. 2001/29 (“InfoSoc Directive”).
- In such circumstances, whether the following factors are relevant:
- the awareness of the hyperlinker of the failure of authorisation from the copyright owner, and/or
- the facilitation role played by the hyperlink on the accessibility of the material.Such conclusions were based on the grounds that the photographs were “freely accessible” to the general internet public on third party websites.
The CJEU decision on this case is much awaited, and it will be complementing the argument introduced by the Svensson case on hyperlinking. The decision in Svensson left some ambiguity as to whether it made a difference that works had been published on a site linked to without the copyright owner’s consent.
On April 7, 2016, Advocate General Wathelet released an opinion that hyperlinking to unauthorised content does not constitute an act of communication to the public under Article 3(1) of the InfoSoc Directive, because the intervention of the hyper linker is not essential to the making available of the copyright works to users. He also held that it is irrelevant whether the hyperlinker is aware that the linked content is unauthorised. In the AG’s view, the only criterion that mattered is whether the linked website is freely accessible or whether the hyperlink is used to circumvent a restriction put in place in order to limit access to a protected work. Only in the latter case would a hyperlink constitute a communication to the public.