Advocate General: hyperlinking to unlicensed Playboy photos is not copyright infringement
This article was previously published in World Trademark Review on 24 May 2016
Advocate General Wathelet recently gave his opinion in GS Media v Sanoma (C-160/15) that it is not copyright infringement to hyperlink to a website that has published unauthorised photos.
GS Media, which operates the Dutch entertainment website, GeenStijl.nl, published an article about nude photos of Dutch model/TV presenter, Britt Dekker, taken for the December edition of Playboy. The article contained a hyperlink to the photos hosted by file sharing website FileFactory.com. At the request of Sanoma (the Playboy publisher), Filefactory.com removed the files but GeenStijl.nl continued to link to other websites containing the photos. Sanoma successfully sued GeenStijl.nl for copyright infringement but on appeal the Dutch Supreme Court asked the CJEU for guidance on linking to unauthorised content.
Under Article 3(1) of InfoSoc Directive (2001/29/EC), authors have the exclusive right to authorise or prohibit any communication to the public of their work. This requires:
- An "act of communication" of a work – it must be transmitted/made available;
- The communication to a "public" – an indeterminate number of potential recipients;
- If the communication uses the same technical means as the original communication, the communication must be directed at a "new public" – a public that was not taken into account by the copyright holder(s) at the time of authorising the initial communication.
Having considered observations from Germany, Portugal, France, Slovakia and the European Commission, AG Wathelet concluded as follows:
- Although hyperlinks facilitate the finding of protected works available on other websites, they do not "make available" those works where they are already freely accessible. The "making available" is the initial communication.
- In order to establish an act of communication, the intervention of the hyperlinker must be vital or indispensable to the accessibility of the copyright work.
- It was irrelevant that GS Media knew that the photos had been leaked and provided hyperlinks "in flagrant violation of the rights of the author of those works".
- There is only a need for a "new public" when the copyright holder authorises the initial communication to the public.
The AG thought that any other interpretation would significantly impair the functioning of the Internet and undermine one of the main objectives of the InfoSoc Directive, which was the development of the EU's information society. Although it was clear in this case that the photos had been leaked, Internet users aren't always aware and can't always check whether the initial posting of a protected work is authorised. A potential liability for copyright infringement might make Internet users more hesitant to post links, which could be detrimental to the "proper functioning and the very architecture of the internet".
The AG also suggested alternative remedies for copyright holders. They could sue the original person who effected the initial unauthorised communication to the public (although they were unknown here). They could get an intermediary injunction against the website operators (ie Filefactory.com and Imageshack.us), under Art 8(3) of the InfoSoc Directive and Art 11 of the Enforcement Directive or sue them for hosting copyright works on their servers.
This case preserves the proper functioning of the Internet but also presents difficulties for protecting online copyright.
It may be correct that Internet users who innocently link to unauthorised content should not be liable for copyright infringement. However, it also seems unjust that copyright owners can't pursue those who make a business from intentionally linking to unauthorised content. The AG's alternative options for protecting copyright could be ineffective in many instances because it isn't always practicable to identify and pursue the original uploader and other websites tend to appear as soon as one has been taken down. Accordingly, one might argue for a possible carve-out for flagrant abusers?
It is also interesting that in Svensson (C-466/12) the provision of a hyperlink was determined to be "an act of communication" but non-infringing because it wasn't directed at a "new public". The Advocate General has reached the same result by a different approach: hyperlinks do not "make available" works that are freely accessible – it is the original uploader who "makes available". We wait to see if the CJEU agrees.