Rapid technological developments and globalisation have brought new challenges and it may be that situations arise which were not previously encountered and/or explored. All the areas of the Law have been affected including - of course - Intellectual Property.
This brief overview will focus on the effects of this change on Copyright and specifically on Internet Hyperlinks and the right to communicate a creation to the public pursuant to article 3.1 of Directive 2011/29/EC by elaborating on two of most recent and leading cases and fully.
The said article provides as follows: 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.
There has been an ongoing debate and discussion on whether internet links should be treated as an act of communication to the public within the meaning of article 3.1 of the said Directive or not.
In line with the recent and relevant case law development (Football Association Premier league; C-403/08 & ITV Broadcasting; C-607/11), the European Court of Justice issued its judgement on the Svensson case (C-466/12), on 13 February 2013. The concepts of communication and public are to be interpreted in a broad manner, inasmuch as public communication can exist solely by making available the work or service to an indeterminate number of potential users in such a way that they may access it, even if they do not make use of that possibility. Nonetheless, it is pointed out that for a specific act (i.e. the creation of a hyperlink) to be considered as an act of communication to the public within the meaning of the relevant 3.1 article, the communication must be directed at a new public. According to the Court, a new public is a public that was not taken into account by the copyright holders at the time the initial communication was authorised.
The most recent case on the matter is C-160/15. In this case an editor of a monthly magazine, commissioned a photoshoot of a Netherland socialite. GS Media, operator of the internet site GeenStijl, published advertisements and a hyperlink directing viewers to an Australian website where the photos in question were made available without the consent of the magazine editor. Despite demands from the said editor, GS Media refused to remove the hyperlink in question. When the Australian website removed the photos upon Sanoma’s request (magazine editor), GeenStijl published a new advertisement which also contained a hyperlink to another website on which the photos in question could be seen. That site also complied with Sanoma’s request to remove the photos. Finally, internet users who frequent the GeenStijl forum posted new links to other websites where the photos could be viewed.
In these circumstances, the Hoge Raad der Nederlanden (Supreme Court of the Netherlands) decided to stay the infringement claim proceedings and to refer the following questions to the European Court of Justice for a preliminary ruling:
I. 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 Directive 2001/29?
Does it make any difference if the work has also not previously been communicated, with the rightholder’s consent, to the public in some other way?
Is it important whether the “hyperlinker” is or ought to be aware of the lack of consent by the rightholder for the placement of the work on the third party’s website mentioned in 1(a) above and, as the case may be, of the fact that the work has also not previously been communicated, with the rightholder’s consent, to the public in some other way?
II. (a) If the answer to question 1(a) is in the negative: in that case, is there, or could there be deemed to be, a communication to the public if the website to which the hyperlink refers, and thus the work, is indeed findable for the general internet public, but not easily so, with the result that the publication of the hyperlink greatly facilitates the finding of the work?
(b) In answering question 2(a), is it important whether the “hyperlinker” is or ought to be aware of the fact that the website to which the hyperlink refers is not easily findable by the general internet public?
III. Are there 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 which has not previously been communicated to the public with the consent of the rightholder?’
The Advocate General (AG) delivered his non-binding opinion on the 7th April 2016. His conclusions can be summed up in three major bullet points:
The AG argues that as the hyperlinks are posted on a website which direct to works protected by copyright that are freely accessible on another website they cannot be classified as an ‘act of communication’ within the meaning of Article 3(1) of Directive 2001/29. In his view 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 and thus this act does not constitute an ‘act of communication’.
Further to the above the Advocate General also stressed the importance of Hyperlinks to the architecture of the Internet:
“Although the circumstances at issue are particularly flagrant, the Advocate General considers that, as a general rule, internet users lack the knowledge and the means to verify whether the initial communication to the public of a protected work freely available on the internet was done with or without the consent of the holder of the copyright. If internet users risk liability for copyright infringement every time they place a hyperlink to works which are freely accessible on another internet site, they would be much more hesitant to post those links, to the detriment of the proper functioning and very architecture of the internet as well as the development of the information society”
The Judges of the Court now begun their deliberations in this case and it remains to be seen if the final judgement of the Court of Justice will agree with Advocate General’s Opinion.
If the opinion of the Advocate General is followed and such acts are not deemed to be infringing copyright, experts around the world worry that this will dilute the exclusive right conferred to copyright holders to communicate their work to the public.
Copyright holders will only have the right to pursue a claim against the person who effected the initial communication to the public without his authorisation (if that person is known and/or can be traced) but not a person who posts links directing to copyrighted work. This certainly limits (‘dilutes’) the respective right.
It will eliminate any obligation to check if the work they are communicating and directing to via the link is copyrighted or by a licensee. The gateways will be open for misuse as there will be no safety net and third parties will be able to act more freely in ‘bad faith’.
Copyright holders already have trouble enforcing their rights and are at a constant battle against infringers. New technology constantly gives new ammunition to infringers to illegally obtain and copy creations. Hyperlinks are a battle not to be lost.
This article is simply to provide an overview of the developments on the matter and is by no means legal advice.
