The Copyright Directive, which in Article 3 protects the rightholder’s right of communication to the public, is silent on whether hyperlinking constitutes such a right. This has given the Court of Justice ample opportunity to clarify the situation.
In Svensson, the Court dealt with an aggregator website providing links to newspaper articles located on another site. The articles were provided free of charge on the original site but the rightholders argued that the aggregating site profited from them in their own right without paying proper compensation. The Court took the position that
the provision on a website of clickable links to works freely available on another website does not constitute an ‘act of communication to the public’
It did emphasise, however, that hyperlinking to works protected by paywalls and similar restrictions would constitute communication to the public since a ‘new public’ to which the work is communicated would exist in this case. The case, although bringing clarity to the issue of linking to an already published and available copyrighted work, left open the question of very prevalent hyperlinking to works that are both protected and published without the author’s consent.
The Court had an opportunity to decide this issue in BestWater, which was about linking through a frame on a website to some illegally posted YouTube videos. The Court concluded that
The mere fact that a protected work, freely available on an internet site, is inserted into another internet site by means of a link using the ‘framing’ technique … cannot be classified as ‘communication to the public’ … since the work at issue is not transmitted to a new public or communicated a specific technical method different from that of the original communication.
Here, just like in Svensson, the Court did not address the issue of whether the poster’s good faith or financial gain played any role.
This changed in GS Media case, which was decided on September 8, 2016. The case involved the GeenStijl website, which is relatively widely read in the Netherlands. An article had been posted on the site which contained a hyperlink to photos hosted on the third party website (Filefactory). The photographer granted exclusive authorisation to use the photos to Sanoma company and they took action against both Filefactory (which removed them) and Geenstijl. The case, thus, involved hyperlinking to material under protection to which the right holder did not grant authorisation. The photos under consideration were, at the point when the case commenced, not available otherwise.
The Court recognises in paragraph 45 the freedom of information role which the hyperlinks play:
In that regard, it should be noted that the internet is in fact of particular importance to freedom of expression and of information, safeguarded by Article 11 of the Charter, and that hyperlinks contribute to its sound operation as well as to the exchange of opinions and information in that network characterised by the availability of immense amounts of information.
It further remarks that it may be difficult for a user to ascertain whether the material hosted elsewhere, to which they linked, is illegally posted or not. On the other hand, when hyperlinking is not carried out for profit, it is essential that the poster does not know and cannot reasonably know, that that work had been published on the internet without the consent of the copyright holder. A communication to the public will, therefore, always exist where the poster has been notified (presumably by the rightholder) of the protected nature of the work but they decide to link to it anyway (paragraph 49) as well as where the link allows protective restrictions to be circumvented (paragraph 50).
Paragraph 51 introduces a rebuttable presumption that the person who acts for profit and who hyperlink with the full knowledge of the protected nature of the work. Such persons are allowed to challenge that presumption but, obviously, cannot do so where the illegal nature of the links was precisely the biggest marketing point (as it was in case of GS Media company).
Paragraph 53 states that
Such an interpretation of Article 3(1) of Directive 2001/29 provides the high level of protection for authors sought by that directive. Indeed, under that directive and within the limits set by Article 5(3) thereof, copyright holders may act not only against the initial publication of their work on a website, but also against any person posting for profit a hyperlink to the work illegally published on that website and, under the conditions set out in paragraphs 49 and 50 of the present judgment, against persons having posted such links without pursuing financial gain. In that regard, it should in particular be noted that those 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).
This means that copyright holders are allowed to go after the primary infringer as well as the link poster who knows or ought to have known or who circumvents protective measures. The exceptions of Article 5(3) do not have the capacity to excuse such an infringer. Effectively, this means that a notification triggers a take-down procedure whereby a hitherto bona fide linker loses the good faith.the moment the notification is received.
The final decision is stated thus:
in order to establish whether the fact of posting, on a website, hyperlinks to protected works, which are freely available on another website without the consent of the copyright holder, constitutes a ‘communication to the public’ within the meaning of that provision, it is to be determined whether those links are provided without the pursuit of financial gain by a person who did not know or could not reasonably have known the illegal nature of the publication of those works on that other website or whether, on the contrary, those links are provided for such a purpose, a situation in which that knowledge must be presumed.
What can be inferred from this judgment?
- first, hyperlinking to a work with the full knowledge of the lack of a rightholder’s consent, or by circumventing any protective mesures, constitutes communication to the public, irrespective of whether hyperlinking is carried out for profit or not.
- second, knowledge is presumed in cases of those who link for profit but they can rebut this presumption.
So, the two elements, financial gain and knowledge, are combined in such a manner than financial gain increases the burden of proof for the for-profit linker. The not-for-profit linker must still be unaware of the illegal nature and the mere fact that they did not profit financially from hyperlinking does not, in the presence of bad faith, change the situation.
There are two problems with the Court’s approach and both of them have to do with the financial nature of the activity in question.
First, the financial nature of the “for profit” hyperlinking is neither defined nor properly discussed. The term used is not the more common “commercial gain” – which would mean an operation on a larger scale. A private person operating a website which uses some form of advertising could, according to the GS Media court, be judged to be acting “for profit”.
Second, it is not clear why a financial element ought to be part of the decision concerning whether something constitutes communication to the public or not. Whereas it is true that the Court made good faith a central criterion and the pursuit of financial gain is just a clarifying one, it is still true that persons acting without financial gain are in a better position. This is puzzling for works have either been communicated to the public – i.e. new public had been found and this public gained access to the works – or they have not. The financial nature of the poster’s work has nothing to do with the number of people who have gained extra access to the work (although it very well may have to do with the amount of damages which will be awarded in the ensuing tort case).
It seems that potentially problematic hyperlinking covered in EU case law now falls into three categories:
- the first are hyperlinks to protected material legally available elsewhere (e.g. links to news articles). These links, as per Svensson, are not communication to the public since no new public is gained
- the second are hyperlinks to material behind protective walls (e.g. paywalls). Linking to these would, as in Svensson, constitute communication to the public.
- the third, covered in GS Media, are hyperlinks to any other material not available elsewhere (e.g. movies, photos or music) but not involving the act of cracking a protective measure. In this case, the decisive element is the linker’s good faith combined with the financial nature of the case.
It is to be noted, however, that the recent leaked proposal for a Copyright Directive in the Digital Single Market, attempts to create a neighbouring right for news publishers. This grants the right of communication to the public to the news outlets and would potentially severely limit the scope of the first of the three situations outlined above.
Finally, the Court’s insistence on the subjective element as well as its clear warning from paragraph 53 may, in fact, have created a new form of notice-and-takedown procedure for hyperlinks.