Legal Update – CJEU Decision in GS Media: Hyperlinking and Copyright Infringement

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First of all apologies for the length of this post. For those only in the practical effects of this decision I would advise you to scroll down to the heading “So Can You Use Hyperlinks”. However if you have a few minutes I would advise you to read this full article as it sets out the reasoning for the decision and the genesis of the case in question.

On 8 September 2016 the Court of justice of the European Union (“CJEU”) issued a landmark ruling. The case, GS Media C-160/15, addressed the issue of hyperlinks with regard to copyright infringement. This judgement has been welcomed by many as it appears to clarify the uncertainty that has existed since the CJEU’s earlier decision of Svensson C-446/12 in February 2014.

The Background

The decision arose from a reference for a preliminary ruling by the Dutch Supreme Court in a dispute between Sanoma, which publishes Playboy magazine, and GS Media, which runs the popular website “GreenStijl.nl”. Sanoma objected to the publication by that website of hyperlinks to other websites hosting unreleased photographs of media personality Britt Dekker. This was a subject that Sanoma had the rights and which it intended to publish in a forthcoming issue of Playboy. GS Media refused to remove the hyperlinks from the website, despite Sanoma’s demands. The dispute was initially heard in the Amsterdam District Court and was subsequently appealed to the Amsterdam Court of Appeal and the Dutch Supreme Court, before being referred to the CJEU.

The Outstanding Legal Issue

The very nature of the internet has always been a hurdle for judges and legislators alike. The courts do well to recognise that the internet is of particular importance to freedom of expression and of information. However this must be balanced against the legitimate rights of authors to effectively manage their rights and interests.

The legal position that existed before this judgement was that posting, on a website, hyperlinks to protected works which have been made freely available on another website, but without the consent of the copyright holders of those works, would be excluded, as a matter of principle, from the concept of “communication to the public”’ This rather objective approach has been criticised as being at odds with article 3 (1) of the Infosoc Directive which stipulates that:

“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. “

Therefore in GS Media, it was incumbent on the CJEU to effectively provide a clear definition of “communication to the public “, something that had been sorely lacking from the body of the Infosoc Directive.

What the Court Decided

In approaching this question, the CJEU recalled, from its earlier decisions as detailed above,  that the concept of “communication to the public” requires:

  1. An “act of communication” of a work,
  2. The communication of the work to a “public”. It also noted that for the purposes of such an assessment, the court must take account of several additional criteria, including:
  • the indispensable role played by the user and the deliberate nature of its intervention,
  • the use of specific technical means to communicate or, failing that, the existence of a new public,
  • the profit-making nature of the communication.

Interestingly the CJEU sought to downplay in its judgment the earlier decision of Svensson. In a scene reminiscent of the Ides of March the CJEU plunged a knife into its past self by holding that the decision merely confirmed the importance of the rights holder’s consent under article 3(1) of the InfoSoc Directive.  Thus, the CJEU set the ground for a change of law in this area.

The CJEU expressed the view that:

  1. The internet is of particular importance to freedom of expression and of information, and that hyperlinks contribute to its sound operation as well as to the exchange of opinions and information;
  2. It may be difficult, in particular for individuals who wish to post such links, to ascertain whether the website to which those links lead provides access to works which are protected and, if necessary, whether the copyright holders have consented to their posting on the internet;
  3. The content of a website to which a hyperlink enables access may be changed after the creation of that link, including the protected works, without the person who created that link necessarily being aware of it.

So Can You Use Hyperlinks?

The CJEU held that hyperlinking to a work freely available on another website will not constitute an act of communication to the public where the person doing the linking:

  1. Does not do so for financial gain,
  2. Does not know and cannot reasonably know that the work has been published on the internet without the copyright owner’s consent.

In addition, the CJEU held that hyperlinking should be prohibited where the person knew or ought to have known that the hyperlink he or she posted provides access to a work illegally placed on the internet. A hyperlink should also be prohibited where it allows users of the website on which it is posted to circumvent the restrictions taken by the site where the protected work is posted in order to restrict the public’s access to its own subscribers (e.g. via a pay wall).

Conclusion

In the facts of this case, GS Media had posted the links for profit and were well aware that the photos has been published without the permission of Sanoma. GS Media had therefore made a communication to the public and infringed the copyright in the photos.

Beyond the clarification regarding the use of Hyperlinks the practical outcome of this case can be summarised as follows:

  1. the CJEU added a presumption when the posting of hyperlinks is carried out for profit. In such cases it can be expected that the person who posted such a link carries out the necessary checks to ensure that the work concerned is not illegally published on the website to which those hyperlinks lead.
  1. The CJEU has introduced the notion that primary copyright infringement should no longer be a matter of strict liability but rather, and similarly to the case of secondary liability, the defendant’s state of mind should be considered. This may pose problems for the copyright systems of some Member States.
  1. The CJEU appears also to have created a new notice-and-takedown system for primary liability. At para 53 the Court wrote that “rightholders, in all cases, have the possibility of informing such persons of the illegal nature of the publication of their work on the internet and of taking action against them if they refuse to remove that link, and those persons may not rely upon one of the exceptions listed in Article 5(3).

In conclusion this decision marks a departure from previous case law on the communication to the public right. It remains to be seen how the introduction of a subjective intention approach will sit with the rest of the law in this area. It may be a while until the dust settles on this decision and internet users, copyright holders and IP practitioners are able to see the full effect this decision has had.

This article has been prepared by Matthew Lingard, trainee solicitor at Virtuoso Legal. Should you have any questions or require any further information on this topic please don’t hesitate to contact the author by phone on 01132379904 or by email to matthew@virtuosolegal.com.

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