Advocate General opines that if you link to pirated content you do not infringe copyright

On April 7, 2016, the Advocate General of the European Court of Justice Melchior Wathelet has sent his advisory opinion to the European Court of Justice, which is called to issue a ruling between the Dutch wblog GeenStijl.nl and Playboy. Case C‑160/15 GS Media BV v Sanoma Media Netherlands BV.

In 2011 GeenStijl published a link to some pirated Playboy photos (photographs of Ms Dekker) that Playboy published in Playboy magazine in December 2011.

Twice GeenStijl published links to sources where the photos were hosted without permission. Sanoma  (Playboy publisher)  brought an action at the Rechtbank Amsterdam (District Court, Amsterdam) for infringement of copyright. The court largely upheld those claims. The Gerechtshof Amsterdam (Court of Appeal, Amsterdam) set aside the judgment holding that GS Media (owner of GeenStijl) had not infringed the copyright of the photographer because the photos “had already been communicated to the public” by someone else. However, its action was still unlawful because the posting those hyperlinks “encouraged visitors to GeenStijl to view the photographs illegally posted on Filefactory.com which, without those hyperlinks, would not have been easy to find.” (Advocate’s opinion) However, the posting of a cutout of one of the photo infringes the copyright. Everybody appealed at the Hoge Raad der Nederlanden (Supreme Court of the Netherlands).

The Dutch Supreme Court decided to stay its proceedings and refer (among other) the following questions to the ECJ for a preliminary ruling:    “If anyone other than the copyright holder refers by means of a hyperlink on a website controlled by him to a website which is managed by a third party and is accessible to the general internet public, on which the work has been made available without the consent of the rightholder, does that constitute a “communication to the public” within the meaning of Article 3(1) of the Copyright Directive (2001/29).

Article 3

Right of communication to the public of works and right of making available to the public other subject-matter

1. Member States shall provide authors 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.

3. The rights referred to in paragraphs 1 and 2 shall not be exhausted by any act of communication to the public or making available to the public as set out in this Article.’

wathelet
Melchior Wathelet, Advocate General

The Advocate General opines that linking is not “making available to the public”.

He refers to Svensson and Others (C‑466/12, EU:C:2014:76), where the ECJ ruled 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’.

That decision makes the point that “[i]n 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.”

The Advocate General opined:

I consider that 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.

Full opinion here.

 For more information, Francesca Giannoni-Crystal.