In the view of the Portuguese Republic, the person who makes the work directly available to the public and who therefore effects an ‘act of communication’ within the meaning of Article 3(1) of Directive 2001/29 is the person who places the work on the server from which the internet user is able to access it. The Portuguese Republic submits that it is not the ‘hyperlinker’ — who merely makes a secondary or indirect ‘communication’ — that ensures that ‘members of the public may access [the works] from a place and at a time individually chosen by them’. The act which actually produces that effect is undertaken by the person who effected the initial communication.
The Portuguese Republic claims that if anyone other than the copyright holder refers by means of a hyperlink on a website operated by him to another website which is operated by a third party, is accessible to the general internet public and on which the work has been made available with or without the authorisation of the rightholder, that does not constitute a ‘communication to the public’ within the meaning of Article 3(1) of Directive 2001/29.
The Commission stated (de) that in its observations in Svensson and Others it had submitted that in a situation where a clickable link (or ‘hyperlink’) on a certain website directs to a work protected by copyright contained on another website and where the users of the first website thus have access to that work, there can be no question of an ‘act of communication’ since there has been neither transmission nor retransmission in accordance with Directive 2001/29.
GS Media, the Federal Republic of Germany, the Portuguese Republic, the Slovak Republic and the Commission proposed that Question 1(a) and (b) asked by the referring court be answered in the negative. They maintained that there is no ‘communication to the public’ within the meaning of Article 3(1) of Directive 2001/29 where a hyperlink directs to a third-party website which is freely accessible to the general internet public and on which the work concerned has been made available without the authorisation of the rightholder, including where that work has never been published in some other way with the rightholder’s authorisation.
With regard to Question 1(c), GS Media, the Federal Republic of Germany, the Portuguese Republic and the Commission asserted that subjective criteria are irrelevant in the assessment of a ‘communication to the public’, which must be conducted on an objective basis. The Portuguese Republic did, however, maintain in the alternative, in the event that the Court answers Questions 1 and 2 in the affirmative, that such communication presupposes that the ‘hyperlinker’ was unequivocally aware that the initial communication was not authorised.
On the other hand, the Slovak Republic maintained that it is relevant whether the person who posts a hyperlink to a protected work had to be aware that the work had previously been made available to the public without the authorisation of the rightholder. Thus, with a view to safeguarding the objective of Directive 2001/29, as soon as that person is alerted to that fact by the rightholder or as soon as he becomes aware of it for some other reason, he should avert a further copyright infringement by avoiding any new communication to the public of the protected work.
With regard to Question 2(a) and (b), GS Media, the Federal Republic of Germany, the Portuguese Republic, the Slovak Republic and the Commission maintained that it should be answered in the negative. According to the judgment in Svensson and Others, the sole determining factor is whether or not the hyperlink makes it possible to circumvent restrictions put in place by the site on which the protected work appears in order to restrict public access to that work. If that is not the case and that website, and thus the work placed on it, is potentially accessible to the general internet public, it is immaterial whether or not the hyperlink facilitates the finding of the work. Furthermore, the opposite solution is not practicable and creates considerable legal uncertainty at the expense of freedom of expression and information.
Sanoma and Others proposed that Questions 1 and 3 be answered to the effect that anyone who, in circumstances like those at issue in the main proceedings, deliberately and in full knowledge posts a hyperlink giving access to a work protected by copyright which has never previously been made public with the rightholder’s consent, carries out an operation which constitutes a communication to the public.
Sanoma and Others asserted that, according to the Court’s case-law, regard must be had to several criteria, which include, first, the fact that, in full knowledge, a user deliberately gives third parties direct access to protected works; second, the fact that, by its intervention, the user plays an indispensable role in those works being made available; third, the fact that the public which thus has access to protected works consists of an indeterminate number of potential users or a fairly large number of persons; fourth, the fact that, by its intervention, the user widens the circle of persons having access to the protected works to a group which the copyright holder for the protected works had not envisaged when he gave his consent for the initial use; and, fifth, the fact that, by its communication, the user pursues a profit-making purpose. According to Sanoma and Others, all these criteria are met in the main proceedings.
In the view of the French Republic, in the circumstances of the main proceedings, the making available of the works concerned by means of a clickable link results in those works being communicated to a new public, because although the photographs in question were not unfindable before GS Media posted the clickable link on the GeenStijl website, only persons holding an electronic key could have easily accessed those photographs before the clickable link was published. It asserted that there has been nothing to show that the GeenStijl public could have easily found the photographs in question without the assistance of GS Media.
The French Republic stated in this regard that the referring court found that the publication of the clickable link had a highly facilitating character. In those circumstances, the French Republic maintained that the existence of a clickable link which considerably facilitates access to storage space containing unpublished photographs protected by copyright constitutes a communication to a new public within the meaning of Article 3(1) of Directive 2001/29.
The French Republic submitted that it is not relevant for the purposes of classification as ‘communication to the public’ whether or not the copyright holder gave his consent to the making available of the work on the website to which the clickable link directs or whether the person providing the clickable link knew that the rightholder did not give his consent for the work to be made available.