June 8, 2016

In an article first published by Intellectual Property Magazine, Sunniva Hansson argues that the CJEU is unlikely to follow the AG’s ‘radical’ opinion on the Playboy photographs linking case as it would severely undermine the protection of copyright works on the internet.

The question of whether linking to a website containing infringing content constitutes an infringement of copyright under EU law is a key issue for holders of intellectual property rights, but one which has not yet been definitively addressed by the Court of Justice of the European Union (CJEU). On 7 April 2016, Advocate-General (AG) Wathelet handed down his opinion in GS Media BV v Sanoma Media Netherlands BV and Ors (Case C-160/15), encouraging the court to rule that linking to infringing content does not infringe copyright.

Links to websites and locations are an integral feature of the internet. While some internet users are unaware that they link to websites containing infringing content, a large number of websites are set up for the very purpose of linking to films, software, e-books and other content uploaded to host sites without the consent of the rightsholder. These websites are sophisticated operations, whose aim, typically, is to attract an audience for the adverts placed on the websites, thereby generating significant revenue for their operators. It is undisputed that the systematic linking to infringing content causes considerable damage to the content industries, ultimately reducing consumer choice.

The case

In 2011, photographs taken for and intended for publication in Playboy Magazine were leaked and uploaded to a hosting site, without the consent of Sanoma, the magazine’s publisher. GS Media, which operates the popular Dutch gossip blog, GeenStilj, then published links to the locations of the photographs. Sanoma requested that GS Media remove the links, which it refused to do. Sanoma also requested the hosting site to remove the files, which it did. However, by the time the host site had removed the photographs, they had been uploaded to a number of other hosting sites. GS Media published the links to some of those locations, too.

Sanoma brought an action against GS Media and, in the course of the proceedings, the Dutch Supreme Court referred a number of questions to the CJEU for a preliminary ruling. The questions relate to the interpretation of Article 3(1) of the Directive on the harmonisation of certain aspects of copyright and related rights in the information society (2001/29/EC) (the Copyright Directive), which requires member states to confer rights of communication to the public on authors.

Context

The AG’s opinion follows two main strands:

• Linking does not constitute a communication within the meaning of Article 3 of the Copyright Directive; and
• If it does constitute a communication, the new public criterion, established by the CJEU in case law, is not applicable, and, in any event, not satisfied on the facts.

These findings are remarkable, given the CJEU case law on linking as well as the facts of the case. Indeed, it is not an exaggeration to say that the Advocate-General’s opinion, if followed, would revise wholesale the current EU framework on linking.

As established in case law, the concept of a communication to the public includes two cumulative criteria: (1) an act of communication of a work; and (2) the communication of that work to a public. In addition, where the work is communicated by the same technical means as the initial communication, it is necessary to demonstrate that the communication is directed at a new public.¹

Linking was first addressed within this framework by the court in Svensson and Others v Retriever Sverige AB (Case C-466/12), where the court ruled that linking constitutes a communication within the meaning of Article 3. However, linking to works freely available on a website, with the authorisation of the rightsholder, is not a communication to the public, given that: (i) the communication was made by the same technical means as the initial communication; and (ii) there was no new public, as the initial communication was accessible by all internet users, not subject to “any restrictive measures” and, therefore, the users of the linking site was “part of the public taken into account by the copyright holders when they authorised the initial communication.”

Subsequently, the court addressed linking, by way of reasoned orders, in the cases BestWater Intl GmbH v Michael Mebes and Stefan Potsch (Case C-348/13) and C More Entertainment AB v Linus Sandberg(Case C-279/13).

BestWater concerned embedding, that is, the practice of linking to content (in this case a video) on a host site while making it appear as if it is accessible on the website providing the link. The court ruled that embedding a video on a website does not attract liability under Article 3, if, and to the extent that, the work is freely accessible on the host site, given that: “the assumption must be made that the rightholders have, when they permitted this communication, considered all internet users as the public.”² Crucially, it appears, therefore, that the premise of the CJEU’s ruling is that content that is freely available is, by definition, authorised by the rightsholder.

C More concerned the provision of links to sports content which enabled circumvention of the paywall the rightsholder had put in place. In the course of the domestic proceedings, the Swedish Supreme Court referred five questions relating to Article 3, including four questions relating to whether linking amounts to communication to the public.³ In response, the CJEU referred the Swedish Supreme Court to its judgment in Svensson, whereupon the Swedish Supreme Court decided to withdraw the four first questions and conclude that the linking amounted to a communication to the public.

However, despite Svensson, BestWater and C More, there is still no definitive answer to the question of whether linking to unauthorised copyright content that is freely available amounts to a communication to the public under Article 3(1) of the Copyright Directive.

While it has not ruled on whether linking to unauthorised, but freely available, content constitutes communication to the public, the CJEU has clearly stated that the act of linking itself amounts to a communication. Seen against the unambiguous ruling in Svensson, which was followed, endorsed and clarified in BestWater and C More, the Advocate General’s finding that linking does not constitute a communication can only therefore be seen as an attempt to revise CJEU case law.

The AG held that: “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.” The AG therefore introduces the criterion on “indispensability” in the assessment of whether an act constitutes a communication. Consequently, if a link is not indispensable in making available a copyright work, the first limb of the Article 3 test is not met.

Nevertheless, the AG goes onto consider the situation were the court to follow its previous jurisprudence to the effect that linking amounts to a communication. The opinion asserts that: “the criterion of a new public is applicable only where the copyright holder has authorised the initial communication to the public. Since there is no such authorisation in the main proceedings, the criterion of a ‘new public’ is not applicable.” This is a very peculiar interpretation not only of the CJEU’s jurisprudence, but also of the facts of the case.

As established by the CJEU, the new public criterion is applicable when the work is communicated by the same technical means as the initial communication. In this case, it could be said that the work is communicated by the same technical means as the original communication: both on the internet, although arguably the internet comprises more than one technology. The better interpretation is therefore that it was communicated by a different technical means than the original communication, being that authorised by the rightsholders, namely the publication of the pictures in Playboy Magazine. In any case, on the first construction, the new public criterion kicks in; on the latter construction, there is a communication to the public within Article 3.

Impact

This opinion is so radical in its rejection of the court’s jurisprudence that it is hard to see how the court could follow it. In short, the Advocate General has bought into the notion that regulation of the internet will break it,⁴ with the upshot that, on his suggestion, linking to an evidently unauthorised source of copyright works, which is difficult, if not impossible, to find without the link, does not amount to an infringement of copyright. Of course, the internet is currently not “broken” despite Svensson, BestWater and CMore.

While the AG’s approach is, in itself, remarkable, the consequences for enforcement of copyright infringement at the EU level are significant. It means that linking sites must be addressed through national concepts of secondary liability, which are not harmonised in EU law, rendering copyright enforcement truly fragmented. Consequently, injunctions pursuant to Article 8(3) of the Copyright Directive, whereby internet service providers have been ordered to “block” access to linking sites, might not be available in all member states.

However, the AG suggests that rightsholders will not be left without remedies on his approach, instead they can pursue the host sites. This is an unrealistic solution. Although it is certainly true that host sites must take more responsibility for addressing copyright infringement, this presents no solution to the matter of sites systematically linking to unauthorised content.

Currently, host sites can escape liability for copyright infringement under EU law, provided that they remove infringing content upon notice from a rightsholder. Notices to host sites, as demonstrated in this case, may lead to the eventual removal of the unauthorised content, but by the time one host site has removed it, a copy will already have been uploaded to other host sites, whereupon linking sites will link to those locations.

As long as host sites cannot be ordered to prevent the uploading (or re-uploading) of infringing content, a duty the CJEU has been reluctant to impose, notices to host sites is not a solution to the damage done by linking sites.

If the CJEU were to follow AG Wathelet’s opinion, this would be nothing short of mind-boggling. Even if the court finds that there can only be infringement of copyright by linking when a paywall (or other restriction) is circumvented, it will highlight a major flaw in the copyright acquis. It will mean that these crucial actors in the business of content piracy will no longer fall under the umbrella of EU copyright law, thereby rendering the addressing of such actors, whether directly or through injunctive relief, much more difficult and fragmented across the EU.

Footnotes

1. See ITV Broadcasting Ltd, v TVCatchup Ltd (Case C-607/11), at 21 and 31, summarising the court’s case law on Article 3.

2. BestWater, at 18, unofficial translation from French.

3. It is noted that C More also concerned the differing rights of authors and related rightsholders under Article 3.

4. See, in particular, paragraph 77.