GS Media v Sanoma – opinion of advocate general

It was apparent from the documents before the Court that protected works, namely photographs, were made available to users of websites such as Filefactory.com and Imageshack.us without the consent of the copyright holders, but that infringement of copyright was not at issue in the main proceedings.

Directive 2001/29 does not contain any definition of ‘communication to the public’, the Court’s settled case-law states that that concept includes two cumulative criteria, namely an ‘act of communication’ of a work and the communication of that work to a ‘public’. Recital 23 of Directive 2001/29 states inter alia that communication to the public ‘should cover any … transmission or retransmission of a work to the public [not present at the place where the communication originates] by wire or wireless means, including broadcasting’.

Hyperlinks posted on a website make it much easier to find other websites and protected works available on those websites and therefore afford users of the first site quicker, direct access to those works. Hyperlinks which lead, even directly, to protected works do not ‘make available’ those works to a public where the works are already freely accessible on another website, but merely facilitate the finding of those works.

In 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. 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.

It is not disputed that, since the hyperlinks on the GeenStijl website are aimed at all potential users of that website, an indeterminate and fairly large number of recipients, those hyperlinks are certainly aimed at a public. However, the criterion of ‘a new public’, as required by paragraphs 24 and 31 of the judgment in Svensson and Others, is not applicable and in any event is not satisfied in this instance. Where ‘there is no new public, the authorisation of the copyright holders is in any event not required for’ the communication to the public in question.

It is a matter of common knowledge that the posting of hyperlinks by users is both systematic and necessary for the current internet architecture. Internet users are not aware and do not have the means to check whether the initial communication to the public of a protected work freely accessible on the internet was effected with or without the copyright holder’s consent.

If users were at risk of proceedings for infringement of copyright under Article 3(1) of Directive 2001/29 whenever they post a hyperlink to works freely accessible on another website, they would be much more reticent to post them, which would be to the detriment of the proper functioning and the very architecture of the internet, and to the development of the information society.

It should be noted that the operators of the Filefactory.com and Imageshack.us websites complied with Sanoma’s request to remove the photographs in question from their websites. Consequently, the hyperlinks to those other websites on the GeenStijl website were rendered ineffective.

Conclusion (de)

(1) Article 3(1) of Directive 2001/29/EC must be interpreted as meaning that the posting on a website of a hyperlink to another website on which works protected by copyright are freely accessible to the public without the authorisation of the copyright holder does not constitute an act of communication to the public, as referred to in that provision.

(2) Article 3(1) of Directive 2001/29 must be interpreted as meaning that it is not important whether the person who posts on a website a hyperlink to another website on which works protected by copyright are freely accessible to the public is or ought to be aware that the copyright holder has not authorised the placement of the works in question on that other website or that, in addition, those works had not previously been made available to the public with the copyright holder’s consent.

(3) Article 3(1) of Directive 2001/29 must be interpreted as meaning that a hyperlink to another website on which works protected by copyright are freely accessible to the public, which facilitates or simplifies users’ access to the works in question, does not constitute a ‘communication to the public’ within the meaning of that provision.