EU: Advocate General – Hyperlinking is lawful regardless whether content was uploaded with or without permission
On 7 April 2016, it was for Belgian Advocate General Melchior Wathelet to opine on whether it is at all of relevance if a hyperlink leads to a copyright protected work that was uploaded with the author’s permission or to a work that lack such authorisation. The question arose in the course of legal proceedings before the Hoge Raad of the Netherlands. In legal terms, the Advocate General had to assess whether a “communication to the public” within the meaning of Art. 3 (1) of the InfoSoc Directive 2001/29 was to be affirmed or not. In the end, he is taking the position that a hyperlink forms no communication to the public regardless whether the linked content was uploaded with or without the author’s permission (Opinion, 7th April 2016, C-160/15 – GS Media).
The hyperlink at issue led the Internet user to an Australian website that quite obviously contained unauthorized photos. Given that neither in the Svensson case (judgment of 13th February 2014, see our blog post) nor in the BestWater International case the CJEU had to decide upon the matter of the (un-)lawfulness of the original upload, the Dutch Hoge Raad referred the respective question to the Luxembourg judges. So far, precedent was set that a hyperlink to a freely available website holding copyright protected works forms no communication to the public in the sense of Art. 3 (1) Directive 2001/29. This even applies if the work is embedded on a website by means of the framing technology.
Beyond the mere question of authorisation, the Hoge Raad also confronted the CJEU with the question whether the legal assessment would change if the person linking to the content positively knew about the copyright infringement. Thus, this subjective element is also at stake in these proceedings.
The bottom line of the Advocate General’s opinion is that a hyperlink to a website featuring photos uploaded without the author’s permission may not be seen as a communication to the public. According to Melchior Wathelet, neither the circumstance of a copyright infringement nor the awareness of such circumstance leads to a communication to the public. Instead, the only criterion that shall matter is whether the linked website is freely accessible or whether the hyperlink is used to circumvent any kind of restriction put in place in order to limit access to protected work. Only in the latter case, may the hyperlink constitute a communication to the public.
Thus, hyperlinking forms a legitimate way of granting, facilitating or simplifying the user´s access to a work. The Advocate General takes a very clear and liberal view when stating that any kind of differentiation as to whether the content was uploaded with or without the author’s permission would significantly impair the functioning of the Internet. If Internet users were at risk of proceedings for copyright infringement whenever they use a hyperlink, then those users would be much more reticent to use such links. This would be to the detriment to the development of the information society as such. However, Melchior Wathelet explicitly emphasizes the importance of considerable access to information in a modern society. In this light, the Advocate General expresses the view that the claims based on Art. 8 of the Directive 2001/29 equip the author with adequate means to go against the unlawful upload in first place. He sees no need to complement these measures with actions possibly be taken against those who hyperlink to the content at issue.
The Advocate General’s point of view is in line with and pursues the goals of the previous judgments as rendered by the CJEU in 2014. Of course, it remains to be seen whether the CJEU will follow Wathelet’s recommendations. However, there is a good chance that the judges may tend towards the same direction. If that were the case, there would be an impact on the still pending decision regarding BestWater International in Germany. The German Federal Court of Justice decided – upon the CJEU’s preliminary ruling in 2014 – to remit the matter to the court of appeal in order to clarify whether the video in question had been uploaded with or without the consent of the right holder. In the event that the CJEU were to follow the Advocate General, such clarification would be obsolete.
Furthermore, the CJEU’s decision will be of great importance also for the implementation of the Commission’s Digital Single Market strategy. Within such single market, the overall benefits of the Internet are equally important as the possibility to effectively enforce one’s copyrights. On the one hand, IP rights shall be protected at high level, but on the other, any net requires strong connections. Those connections are the hyperlinks in the online world.