2016/05 > Internet links and communication to the public

The forthcoming decision of the Court of Justice of the European Union (EUCJ) in the case GS Media BV (GS Media) vs Sanoma Media Netherlands BV (Sanoma), publisher of Playboy magazine, will be of great interest due to the very  topical facts of the case: hyperlinks and making copyright works availabile on the internet. In his brief regarding the case (Aff. C-160/15 (PDF)), the General Advocate Melchior Wathelet  gave his interpretation of article 3(1) of the Directive of 22 May 2001 on the harmonization of certain aspects of copyright and related rights in the information society, which states that “Member States shall provide authors with the exclusive right to authorize or prohibit any communication to the public of their works, by wired 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.”

In this particular case, the company GS Media had provided a clickable link on its website to other websites where photos of a celebrity, to be published in a forthcoming issue of the Dutch edition of Playboy magazine, were available without the authorization of the right-holder, Sanoma. The Dutch courts that had been asked to decide whether or not such a link was infringement of Sanoma’s copyright made contradictory decisions.

On appeal, the Supreme Court of the Netherlands noted that although the photos were difficult to access on the websites where they were published, the  hyperlink from Sanoma’s website had made such access easier. The Court also recalled that the facts of this litigation have already been decided on by the EUCJ, on 13 February 2014 (Aff. C-466/12– Svensson). Indeed, in that decision the Court had stated the principle that (i) the provision of a link was a communication to the public and that (ii) the copyright holder’s authorization was necessary when this link enables communication of the work to a “new public”. The Court had therefore decided that the provision of clickable links available on a website and giving access to a copyright work already available on another website was not an act of communication in the meaning of article 3(1) of the Directive because it did not enable a communication to a new public.

In the present case, was there any communication to a new public and was the rights holder’s authorization necessary for the creation of hyperlinks directing to contents accessible on the original website? The Supreme Court of the Netherlands decided, in spite of the preceding decision in the Svensson case, to stay the proceedings and to ask the EUCJ again about this issue.

In his brief, the General Advocate Melchior Wathelet recalls that an author has the exclusive right to control the communication of his work to the public according to article 3(1).

Nevertheless “hyperlinks on a website which point to other websites where protected works are freely accessible cannot be qualified as ‘acts of communication’ within the meaning of the Directive”.

On the other hand, the issue of whether the one who makes the link knows or is supposed to know that “the initial communication of the photos on other sites was not authorized is not relevant” in the absence of any act of communication. Last, the General Advocate considers that the “new public” criterion is not applicable in the present case because the right-holder did not authorize the initial communication and, in addition, the GS Media intervention has no incidence on the provision to a new public.

Thus, providing this link cannot be considered in this case to be copyright infringement.

However, the Advocate General calls for vigilance from the Supreme Court of the Netherlands concerning the issue of whether or not access to websites owned by third parties is free to internet users. Mr. Wathelet points out that if hyperlinks set up by GS Media on its own website had enabled access to protected copyright works published on other websites, that had access restrictions set up, in a way allowing GS Media website users to circumvent the restrictions, this provision of access should then have been considered as an act of communication requiring the right-holder’s authorization.