The copyright implications of Internet hyperlinking have been a widely-discussed topic recently, particularly in light of whether such an act can amount to a communication to the public within the meaning of Article 3, Paragraph 1 of Directive 2011/29/EC (InfoSoc Directive). The fact that hyperlinking constitutes a large part of the Internet’s backbone promoted large interest in one specific long awaited preliminary ruling of the CJEU which gave important guidance when a hyperlink can violate copyright. The case is informally named after one of the applicants in the main proceedings, who, as a journalist, wrote press articles that were published on a newspaper’s site. The works were freely accessible to be read by users without any financial remuneration. The defendant - Retriever Sverige, operated a website that provided its clients, according to their needs, with lists of clickable Internet links to articles published by other websites. The applicants in the main proceedings claimed that Retriever Sverige had made use, without authorisation, of certain articles authored by them, by making them available to its clients. By answering the questions posed by the Swedish Court, the CJEU shed light on several essential questions regarding hyperlinking and copyright infringement.

Adhering to its previous case law, the Court ruled that the concepts of communication and public are to be interpreted in a broad manner, inasmuch as public communication can exist solely by making available the work or service to an indeterminate number of potential users in such a way that they have the opportunity to access it, even if they do not make use of that possibility. Thus, creating a hyperlink that can be clicked and that consequently redirects a user to a protected work or service constitutes an act of making available to the internet public and, as such, an act of communication to the public. However, the CJEU has made further clarifications that, in order for a specific act to be considered communication to the public within the meaning of article 3, paragraph 1, of the said Directive, the creative work must be communicated towards a new public, not just any public. The word “new” must be interpreted in a negative manner as in public, which was not taken into account by the copyright holder at the time the initial communication was authorised. Since in the case at hand the news articles were freely available for readers on the original website, the simple hyperlinking on another website towards the same content would not entail a “new” public. Hence, because the initial communication by the copyright holder already encompassed the potential public that subsequently accessed the content via the links, the conduct of Retriever Sverige could not be qualified as a “communication to the public” within the meaning of Article 3, Paragraph 1 of the InfoSoc Directive.

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A similar case, brought before the CJEU, forced the Court to refer directly to the Svensson Case by issuing not a decision, but an order. In Case C-348/13 Bestwater the ECJ ruled that:

The embedding, within one’s own website, of another person’s work made available to the public on a third-party website, does not by itself constitute communication to the public within the meaning of Article 3(1) the InfoSoc Directive, insofar as the work concerned is neither directed at a new public nor communicated by using specific technical means that differ from that used for the initial communication.

What the Bestwater Case proves is that the CJEU has in mind a more generic sense when using the word “hyperlinking” or just “linking”. The CJEU’s understanding of this term covers various online conduct such as deep-linking, inline linking, embedded linking and framing, which although different from one another are treated in a legally-identical way by the CJEU.

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The CJEU has had the chance to express its opinion on hyperlinking to protected content once more in the C-279/13 - C More Entertainment Case. C More provided live broadcasts of hockey matches to Internet users in consideration of the payment of a fee. The defendant in the main proceedings had positioned freely-accessible links on his website to the C More live broadcasts and had thus circumvented the paywall, established by the claimant. The InfoSoc Directive provides broadcasters with the exclusive copyright related right to prohibit every “making available to the public” of their broadcast, inasmuch it is done without their permission.

The CJEU held that to amount to an act of “making available to the public” an act has to meet two conditions, namely that members of the public may access the protected work (a) from a place and (b) at a time individually chosen by them. Thus, ‘making available to the public’ would encompass only transmissions that can be accessed on-demand by the public from a place and at a time individually chosen by them. As the CJEU noted, “that is not the case of transmissions broadcast live on internet.” C More Entertainment’s live streams of hockey matches would fall out of the scope of the rights granted by the InfoSoc Directive to broadcasting organizations. As a consequence, broadcasters cannot find the necessary tools for protection against hyperlinks which circumvent their pay walls, at least not in the InfoSoc directive. The CJEU reminded that broadcasts are also dealt with in Directive 2006/115 (which covers rental, lending and copyright-related rights) where recital 16 specifies that Member States should be able to provide for more far reaching protection for owners of rights related to copyright than that required by that Directive. Further still, Article 8(3) of Directive 2006/115 provides a general right of communication to the public for broadcasts, conditional on the payment of a fee.

Finally, ECJ held that the InfoSoc Directive does not preclude Member States from ensuring more extensive rights to broadcasters provided this does not undermine the protection of copyright.

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Despite the previous three cases, all dealing with hyperlinking issues, a pending question remains whether hyperlinking in its general sense constitute copyright infringement if the source content to which the link redirects has been uploaded without the permission of the right owner, hence – illegally. This question was answered with the Court’s decision in Case C-160/15 GS Media BV v Sanoma Media Netherlands BV, Playboy Enterprises International Inc. In the case at hand GS Media, the owner of one of the most visited websites in the Netherlands - GeenStijl published an article, which contained links leading to unlawfully uploaded photos, hosted on an Australian website. The photos were due to be published in an upcoming issue of Playboy and were stored there without the authorization of the rights holder (thus constituted illegal content per se). Sanoma, the editor of the monthly magazine Playboy, which holds the copyright to the photos at issue, demanded the removal of the hyperlinks by GS Media but the latter did not comply. After the removal of the illegal content from the Australian website due to the active measures taken by Sanoma, GeenStijl published another identical article, this time hyperlinking to another website, which contained same unlawfully uploaded content. This forced Sanoma to seek protection of its copyright before Dutch courts. After climbing up to the Supreme Court of the Netherlands, the case was referred to the CJEU for a preliminary ruling on the subject.

The Court in Luxembourg following its previously established case law (specifically Svensson, Bestwater and C More Entertainment) reminded that hyperlinking can constitute an act of “communication to the public”, if the work is deliberately offered to an indeterminate number of potential viewers, which form a ‘new public’ compared to the initial scope of people the author has had in mind when the author authorized the primary communication of the work. Bearing in mind that hyperlinking contributes to the sound functioning of the internet and is a facilitator of the freedom of expression and the freedom to seek information, the CJEU stated that a fair balance between the interests of copyright holders, at one hand, and the aforementioned fundamental rights of internet users, on the other, must be found.

In this way the CJEU reached a conclusion that in principle posting a hyperlink on a website to works protected by copyright and published without the author’s consent on another website does not constitute a ‘communication to the public’ when the person who posts that link does not seek financial gain and acts without knowledge that those works have been published illegally. However, this principle has no effect if the linker knew or ought to have known that the hyperlink they posted provides access to a work illegally published. Such would be the case if he/she was notified thereof by the copyright holders, or if the link allows users to circumvent the restrictive measures taken by the site where the protected work is posted (authorized login, a fee, etc.).

Furthermore, when hyperlinks are posted for profit, a presumption that the posting has been done with the full knowledge of the legality/illegality of the content comes into force. This is because it may be expected that the person who posted such a link commercially should have carried out the checks necessary to ensure that the work concerned is not published without the consent of the copyright holder. In such circumstances, and in so far as that presumption is not rebutted, the act of posting a clickable link to a work illegally published on the internet constitutes a ‘communication to the public’.