Hype about the Humble Hyperlink

GS Media v Sanoma Media Netherlands BV and others (Case C-160/15)

10 May 2016

Author: Rachel McAllister
Practice Area: Intellectual Property

R_mcallister

In 1996, the World Intellectual Property Organisation (“WIPO”) approved the WIPO Copyright Treaty, the purpose of which was to modernise copyright law and bring it into line with technological developments in the digital environment.  Despite this, copyright law continues to struggle to adapt to technological developments, particularly at the pace with which advancements are being made.  A prime example of one such struggle can be found in the hyperlink.  

Hyperlinks have become the basic building block of the internet as we know it and are now a routine part of internet life for most internet users who can follow links to read articles, view photographs and watch videos.  Problems arise where the use of a hyperlink redirects internet users to content on another website which is protected by copyright.  

The Problem

Consider this. An author writes a book.  The book will be protected by copyright law and the permission of the author is required to release the book to the public.  The author therefore has control over her work and who is able to access it.  In the past, once published, individuals had to go to a shop and buy the book.  The author was able to control this process.  Now consider the position on the internet.  The internet is a series of hyperlinks.  Each website may be considered as a place on the world wide web.  When a person clicks on a hyperlink they can be redirected to content contained on a different website in a different place.  While the author of the work had control over authorising the first website to host its work, the author has no control over which website hyperlinks back to her original work.

In recent years, the humble hyperlink has therefore come under attack as copyright owners have desperately sought to retain authority over their works in the digital arena.  As a result, the European Court of Justice (“ECJ”) has in the past opined on a number of cases to ascertain the extent to which, if at all, the use of a hyperlink to access protected material (the source of which was authorised by the copyright owner) infringes copyright.

The humble hyperlink is again in the press.  On 7 April 2016, Advocate General Wathelet published his opinion on questions referred to the ECJ by the Supreme Court of the Netherlands in the case of GS Media BV v Sanoma Media Netherlands BV and others (as further detailed below)  as to whether hyperlinking to works which are freely accessible on another website, but which have also been posted without the consent of the copyright owner, constitutes copyright infringement for the purposes of Article 3(1) of Directive 2001/29/EC on the harmonisation of certain aspects of copyright and related rights in the information society (the “Copyright Directive”).

Background

One of the key roles of the ECJ is to interpret European law and ensure uniformity of application across all Member States.  Article 3(1) of the Copyright Directive provides 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”.

Previously, in the landmark decision of the ECJ in the case of Svensson and others v Retriever Sverige AB, Case C-466/12 the ECJ held that, although publishing a hyperlink on a website linking to freely available content on another website is a ‘communication’ within the meaning of Article 3(1) of the Copyright Directive, it is not a ‘communication to the public’ on the basis that the works had already been made available to all internet users via the other website.  In this case, Retriever Sverige AB (“Retriever Sverige”) was a Swedish company which operated a website through which users received hyperlinks to articles on other websites.  Svensson and the other claimants were journalists who had written articles and had consented to their articles being published in the Göteborgs-Posten newspaper and on the newspaper's website, where the articles were made freely accessible to all internet users.  Retriever Sverige provided hyperlinks on its website to these articles on the Göteborgs-Posten website without the permission of their respective authors.

However, this case did not address the legal position where a hyperlink directs internet users to pirated content on another website, i.e. the content to which the internet user is redirected has also not been authorised by the copyright owner.  Would this be allowed?  The Advocate General has now given his opinion on this matter in the context of the case of GS Media v Sanoma Media Netherlands BV and Others.

The Facts

The request for a preliminary ruling was made in relation to a dispute in the Netherlands between GS Media (“GS Media”) of the one part and Sanoma Media Netherlands BV (“Sanoma”), Playboy Enterprises International Inc. (“Playboy”) and Ms Dekker (together “Sanoma and Others”) of the other part.  The dispute arose in relation to the publication on the GeenStijl.nl (“GeenStijl”) website, which is operated by GS Media, of hyperlinks to a number of other websites which published leaked photographs of the Dutch celebrity Ms Dekker which had been taken for Playboy magazine but had not yet been published or otherwise made available by Playboy to the public.

In October 2011, GS Media published a report on the GeenStijl website which included a hyperlink.  When an internet user clicked on the hyperlink they were redirected to an Australian data-storage website called Filefactory.com.  Internet users could then open a new window and download files containing 11 photos of Ms Dekker.  Despite receiving a number of demands from Sanoma to remove the hyperlink directing internet users to the infringing material, GS Media refused to do so.  However, the photos were removed from the Filefactory.com website.

In November 2011, GS Media published another report on the GeenStijl website containing a hyperlink to a website called the Imageshack.us, where photographs of Ms Dekker could again be found.  The Imageshack.us website also complied with Sanoma’s demand that the photographs be removed from its website.  A third report with a hyperlink leading to the photos appeared on the GeenStijl website later in November 2011.  Forum users on the Geenstijl website then posted new links to other websites where the relevant photographs could be viewed, exacerbating the problem. 

Sanoma and Others brought an action against GS Media claiming that GS Media had infringed the photographer’s copyright by placing hyperlinks to the photographs on the GeenStijl website.  Their claim was upheld by the District Court but later set aside by the Court of Appeal.

On further appeal to the Supreme Court of the Netherlands, the Supreme Court broadly requested the following clarifications from the ECJ:

1.whether Article 3(1) of the Copyright Directive must be interpreted as meaning that the provision on a website of a hyperlink to another website operated by a third party, which is accessible to the general public and on which works protected by copyright are made available to the public, without the authorisation of the copyright holder constitutes an act of communication to the public;

2.whether the fact that the person who posts the hyperlink to a website is or ought to be aware of the lack of consent by the copyright holder for the initial communication of the works on that website is important for the purpose of Article 3(1); and

3.whether, and if so in what circumstances, the fact that a hyperlink has facilitated access to the works in question is relevant in accordance with Article 3(1).

Decision of the Advocate General

Advocate General Wathelet confirmed that Article 3(1) of the Copyright Directive gives authors the exclusive right to authorise or prohibit any communication to the public of their works.  It therefore followed that every act of communication of a work protected by copyright to the public requires authorisation from the copyright holder.  The Advocate General opined that hyperlinks posted on a website make it much easier for internet users to find other websites and, in turn, protected works available on such websites. Hyperlinks therefore afford users of the first website containing the hyperlink with quicker, direct access to those protected works.  However, 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 to all internet users, but merely facilitate the finding of those works.  The act of ‘making available’ was the action by the person who effected the initial communication.

The Advocate General further opined that, where an ‘act of communication’ is not first established, the question of the copyright holder not authorising the placement of his work on other websites operated by a third party is irrelevant.

Furthermore, the Advocate General considered that, as a general rule, internet users were not aware and did not have the means to check whether the initial communication to the public of a protected work freely accessible on the internet was communicated with or without the copyright holder’s consent. If internet users were at risk of proceedings for infringement of copyright under Article 3(1) of the Copyright Directive whenever they posted hyperlink to works freely accessible on another website, they would be much more reluctant to post them, which would be detrimental to the proper functioning and the very architecture of the internet, and to the development of the information society.

However, the Advocate General did leave open the possibility that GS Media could be deemed to have infringed Article 3(1) of the Copyright Directive by hyperlinking to the photographs in issue if the hyperlink constituted an indispensable intervention without which internet users could not enjoy the works, such as where the hyperlink enabled internet users to circumvent restrictions on the third party sites linked to.  The Advocate General's reasoning appears to indicate that merely facilitating access to the photographs, even where they would have been difficult to find without the hyperlinks is not, in itself, sufficient to constitute an indispensable intervention for these purposes and is therefore outside of the scope of Article 3(1) of the Copyright Directive.

Comment

The Attorney General’s opinion to the ECJ is not binding.  However, the ECJ often uses such opinions as the basis for its rulings.  The final ruling of the ECJ is expected later this year.  It will therefore be interesting to see whether the ECJ will follow the opinion of the Attorney General.  If it does, the decision would be hugely disappointing for copyright owners, but would be good news for news sites, bloggers and the general public.   It would mean that copyright owners could not take action against those who provide hyperlinks to copyright works already available on the internet, even where that content has been published without their consent, and notwithstanding that providing the hyperlinks would make it much easier for internet users to find the unauthorised copies of the works.  Such a decision would therefore contribute to the spread of pirated material online. 

The Advocate General did point out that it would be possible for copyright owners to take alternative action by:

1.bringing proceedings for infringement against the person or organisation that published the initial communication to the public online without the consent of the copyright owner; or

2.applying for an injunction against operators of websites which acted as intermediaries, as their services were likely to be used by users of such websites to infringe intellectual property rights.

Although this may technically be true, the facts in the Sanoma case illustrate the practical difficulties of taking such action.  In this case, the copyright owner successfully brought an action against the first website which had been hosting the infringing photographs.  GS Media then hyperlinked to a second website, from which the copyright owner also secured removal of the photographs. GS Media then continued to publish hyperlinks to the photographs which were available on other websites.  As a result, access to the photographs spiralled out of control, perhaps exacerbated by the attention the proceedings which were issued by Sanoma and Others was receiving.

However, for the ECJ to find otherwise would be to place an unreasonable burden on anyone who uses hyperlinks, thereby destroying the internet we all know and love.  Publishers post links to primary source materials and related stories.  Search engines respond to our queries with links to potentially relevant information scattered across millions of websites that comprise the internet.  Taking into account the sheer scale of the internet and the scope of copyright law, any alternative ruling on the part of the ECJ would give anyone who posts a hyperlink the seemingly impossible task of first checking whether the website to which an internet user would be redirected is infringing copyright.  The legality of uploaded content is far from clear in many cases, particularly when you consider content on popular sites such as Youtube, Facebook and Twitter.  In any event, ordinary web users should not be expected to make expert calls on the copyright status of online material.    

However, there does seem to be a real distinction between members of the general public providing hyperlinks, and companies or entities acting as aggravators and doing so in clear and flagrant violation of copyright, in particular in circumstances where they have been asked to remove the hyperlinks to the infringing material and they have refused to do so.  In light of the speed with which technological advances are taking place and in consideration of the need to balance the rights of authors and the larger public interest, perhaps copyright law is in need of a dramatic rethink.  In the meantime, hopefully the ECJ will avoid the disaster that would be ‘breaking’ the internet.

ends

Rachel McAllistair is a solicitor in Carson McDowell LLP's commercial team

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