Does putting a hyperlink on a website constitute a copyright-relevant ‘communication to the public’ under the EU’s InfoSoc Directive 2001/29?
Mr Svensson is a journalist. He wrote an article, which was accepted for publication by a Swedish newspaper. It was published in two media: in print, and online via the newspaper’s website.
The defendant in this case is Retriever Sverige AB. Its customers subscribe to this E-commerce company for the access it gives to newspaper articles. Its customers also pay for every article they consult.
Mr Svensson brought a claim in copyright law and sued Retriever for ‘equitable remuneration’. He reckoned Retriever had made his article available to Retriever’s subscribers through the search and alert functions on its website. This fell within the copyright relevant acts of either a communication to the public, or the public performance of a work. Either way, consent was necessary and that had not been granted. For good measure, he added that if the Swedish court would deny his ‘making available to the public’ head of claim, then he asked the court to find for him on the basis that Retriever’s actions constituted some other form of ‘making available’.
In response, Retriever denied any liability to pay equitable remuneration either to Mr Svensson or any of the other journalists named as claimants in the action. Focussing on the technology to its website, the broad line of its argument was that the linking mechanisms did not constitute copyright-relevant acts, thus there was no infringement of copyright law.
More specifically, it pointed to the facts that a Retriever customer had to log-in to Retriever’s website. Once there, a customer would fill in a search term. The customer was subsequently provided with a list of hyperlinks to relevant articles. Customers could then click on any of these hyperlinks. Clicking on a hyperlink caused a new window to be opened on the customer’s computer screen. The text could be viewed inside that new window. It was text that had been retrieved from the websites of third parties, and Retriever’s own website did not contain a copy of the original article.
According to the Curia website, the Svea hovrätt has asked:
1. If anyone other than the holder of copyright in a certain work supplies a clickable link to the work on his website, does that constitute communication to the public within the meaning of Article 3(1) of Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society?
2. Is the assessment under question 1 affected if the work to which the link refers is on a website on the Internet which can be accessed by anyone without restrictions or if access is restricted in some way?
3. When making the assessment under question 1, should any distinction be drawn between a case where the work, after the user has clicked on the link, is shown on another website and one where the work, after the user has clicked on the link, is shown in such a way as to give the impression that it is appearing on the same website?
4. Is it possible for a Member State to give wider protection to authors’ exclusive right by enabling ‘communication to the public’ to cover a greater range of acts than provided for in Article 3(1) of Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society?
The proper scope of the ‘communication to the public’ concept in the EC’s InfoSoc Directive, and its subsequent elaboration in the case law of the CJEU, is heavily contested.
One source of the problem is understanding the CJEU’s reasoning in Case C-306/05, Sociedad General de Autores y Editores de España (SGAE) v Rafael Hoteles SA. On its face, this case was about a hotelier pumping broadcast signals around a network inside a hotel.
A second problem is how the CJEU has developed its case law in the intervening six years and has introduced more legal reasoning telling the judges in national courts how to establish a communication to the public (Case C-135/10 Società Consortile Fonografici (SCF) v Marco Del Corso, about a radio in a dentist’s waiting room that does not communicate works to the public; but Case C-162/10, Phonographic Performance (Ireland) Limited v Ireland and Attorney General, about televisions or radios in hotel rooms which do communicate works to the public).
A third problem is how the CJEU has applied its ‘Rafael Hoteles’ reasoning to quite disparate forms of technology. For example, a GUI (Graphic User Interface) makes it easier to operate a computer. The CJEU relied on ‘Rafael Hoteles’ to stop a GUI broadcast on television from falling within the concept of a ‘communication to the public’ (Case C-393/09, Bezpecnostní softwarová asociace).
Equally, the reasoning in ‘Rafael Hoteles’ has been applied to make satellite packagers potentially liable for communicating works to the public (Case C-431/09, Airfield and Canal Digitaal v Belgische Vereniging van Auteurs, Componisten en Uitgevers CVBA (Sabam), and Case C-432/09, Airfield NV v Agicoa Belgium BVBA).
Whether, and to what extent, the reasoning in ‘Rafael Hoteles’ on a communication to the public applies to the internet remains unclear. The legal reasoning used in ‘Airfield’ reveals the Court had expressly limited its reasoning to satellite package providers. The inference can be drawn that the principles of ‘Rafael Hoteles’ and ‘Airfield’ do not yet apply to other intermediary companies, such as ISPs or platforms, that currently also distribute television programmes. See further, Airfield, Intermediaries and the Rescue of EU Copyright Law.
Inference aside, the CJEU’s unclear legal reasoning, potentially contradictory refinements, and partial application to new technology, are combining to form a large problem for national courts: some judges confess they do not know how to apply the CJEU’s case law. They have felt obliged to make yet more references to the CJEU on what constitutes a communication to the public (see for example, Case C-607/11, ITV Broadcasting; Case C-416/12, Wikom Elektrik – can a broadcasting company stop a communication to the public by cable of their broadcast?; and Case C-351/12, OSA – EU copyright law checks in for a long stay at a health spa).
Sanoma and Playboy v GS Media
In light of the legal uncertainty in EU law, it is quite incredible then that a Dutch District Court has apparently had no difficulty whatsoever in applying the CJEU’s case law on a communication to the public to the phenomenon of hyperlinks. Indeed, not only did the Dutch court claim to apply EU case law to hyperlinks but it also went on to make a company liable for a communication to the public when that company put a hyperlink on its website.
Since the Dutch court’s judgment deals with hyperlinking in the context of a communication to the public, and this too is behind the Swedish court’s reference to the CJEU in Svensson, the Dutch case of Sanoma and Playboy v GS Media could be relevant.
The facts leading up to the Dutch case are these. The defendant ran (and runs) a website known as Geenstijl. It placed a hyperlink on its website that directed its users to a website in Australia. The Australian website had a set of copyright-protected photographs on it: a series of nudes of a person who appears on Dutch television. The Dutch court held that the placing of the hyperlink on the Dutch website constituted the Dutch copyright-relevant act of publication, interpreted in light of the concept of ‘communication to the public’ that is found in the EC’s InfoSoc Directive.
The District Court states baldly: ‘From the case law of the CJEU, it appears that the assessment of whether there is a communication to the public must take into account the circumstances of the case. This case law mentions a number of criteria that can play a role. Of particular importance is whether there is: an intervention, a (new) public, and the intention to make a profit.’
The Dutch court went on to ask: was there an intentional intervention? The court started off by making the observation that ‘the placing of a hyperlink which refers to a location on the internet where a specific work is made available to the public is, in principle, not an independent act of publication. The factual making available to the public occurs on the website to which the hyperlink refers.’ However, in this case, the website containing the photographs was not indexed by search engines, and the court believed that in order to be able to see the pictures, internet-users would have had to have typed in the specific URL. Thus without the intervention of the defendants placing the hyperlink on its website, the court believed that the public would not have had access to the photographs. In this context, the court also noted that the defendant’s website attracted some 230 000 visitors a day so placing the hyperlink on its website had ensured that the public knew about the photographs even before they were published in the claimant’s magazine, Playboy.
The Dutch court also went on to find that the defendant had intended to make this intervention. The court noted that the hyperlink was displayed as, ‘H-E-R-E’. The word was preceded by a sexually provocative caption (the court quotes it in full but this is not repeated here to save the blushes of the reader). The Dutch court also noted that the hyperlink and caption were located under the heading: ‘Fucking leaked! Pictures of [X] naked’. From both the caption and the heading, the Court drew the inference that the defendant had intended to make the ‘intervention’.
In so far as a ‘new’ public was concerned, the Amsterdam District Court took as its starting point the fact that only a very small audience had known about the series of photographs (only a couple of photographs of the series had been published) so the placing of the hyperlink enabled quite a large and indeterminate circle of people to know about the series of photographs. According to the District Court, this was a public other than the one which the copyright holder had in mind when giving its consent for the publication of the photo story.
And in respect of the profit motive, the District Court considered that the placing of the link to the series of photographs was unmistakably done with the intention of attracting visitors to its website and/or keeping its regular visitors. By the defendant’s own admission, the judges noted the defendant had a commercial interest in serving up its readers a broad range of ‘rich and enriching’ reports. That the placing of the hyperlink had influenced visitor numbers could be inferred from the defendant’s ‘TOP 50 topics of 2011′, which listed as the most-viewed topic in 2011, the heading: ‘Fucking leaked!’. The Dutch court held that the defendant’s placing of the hyperlink on its website was therefore done with the intention of making a profit.
This Dutch judgment is pretty lamentable not least because the reasoning of the 3-judge Amsterdam District Court is so vague. The District Court claims to have relied on CJEU case law but it has failed to mention what CJEU case law, if any, it was dealing with at any particular point in its judgment – let alone indicate which individual paragraphs of the CJEU’s judgments it was applying to the various points in the case before it.
Nevertheless, the Dutch judgment is one of the few to date that responds to the phenomenon of hyperlinking and it has done so in the context of a communication to the public. As such, it remains to be seen whether passages from it will be repeated by the CJEU in its reasoning to Case C-466/12, Svensson.
The UK’s Supreme Court has recently heard a case about hyperlinks and made a reference to the CJEU.
Update – 18 July 2013
Another reference has been made to the CJEU that discusses hyperlinks and embedding. See further, Case C-348/13, BestWater International – objecting to the embedding of videos.
Update – 8 October 2013
The Svensson case is to be heard by the Fourth Chamber on 7 November 2013.
Update – 21 November 2013
The decision of the Amsterdam District Court in Sanoma and Playboy v GS Media was appealed. The Amsterdam Court of Appeal has now overturned the District Court’s judgment. My unofficial translation of the rather telegraphic reasoning of the Amsterdam Court of Appeal at paragraph 2.4.4 reads as follows:
A person who puts a copyright protected work onto the internet in such a way that it is made accessible to the public (and thereby makes a communication to the public within the meaning of the InfoSoc Directive), is the person who makes this work available to the public, and thus publishes it. A hyperlink referring to a work published at another location is nothing much other than a footnote in either a book or an article in a periodical that refers to a different work which has already been published. In that case, giving a hyperlink is in principle not an independent means of publication or intervention.
A little further on in the judgment and the Amsterdam Court of Appeal decides at paragraph 2.4.7:
Since it has not been established that the photographs on the [Australian website] have remained completely private, this court must proceed on the basis that a third party has published the pictures by placing them on [the Australian website], and that GS Media, although to a certain degree facilitating access to those photographs […], has not provided the public with a new channel of access, and thus has not intervened for the purposes of the CJEU’s case law….
And later, the Amsterdam Court of Appeal deals with the point that the photographs had been published by an unknown third party, whereby the third party infringed the copyrights of the photographer, and the portrait rights and privacy of the television presenter – all of which was tortious. Here the court reasons:
GS Media knew that the publication of the photographs by the aforementioned third party was tortious. Not only had it could have known this by having received the photographs from someone who was obviously using a fictitious name, but Sanoma had already indicated to GS Media that even before the publication of the article with the hyperlink, the photographs had been obtained by illegal means, and, shortly after the hyperlink had been placed, Sanoma had demanded that the hyperlink be removed – something which GS Media had refused to do. Even after the [Australian website] had complied with Sanoma’s demands, GS Media had placed a new link and then allowed its readers to place new links. There is nothing to suggest that without the help and support of GS Media, its audience would have been able to find the photographs by any simple means.
The three judges in the Amsterdam Court of Appeal decided that:
Placing the hyperlink was to a great degree facilitative and moreover the inclusion of the hyperlinks in the texts of the articles could only only be understood as encouraging the audience of the GS Media’s website to look at the illegally placed photographs. Seen in the round, GS Media had acted tortiously against Sanoma.
The Dutch Court of Appeal has overturned the decision of the District Court. Once again, the Dutch court judges talk expressly of ‘CJEU case law’ but they provide no indication as to either the authorities they have in mind or the paragraphs they are relying on. Equally, they do not discuss any Dutch, European, or international legal literature about hyperlinks and copyright law’s responses. There is also no acknowledgement that there are currently three or four ‘hyperlinking/embedding’ references pending before the CJEU.
The style of legal reasoning of the Dutch judges is in stark contrast to that used by the English High Court in cases such as Paramount Home Entertainment International  EWHC 3479(Ch), 13 November 2013 in which: the CJEU’s 9 ‘communication to the public’ judgments are mentioned; legal literature is considered; doubts are expressed; firm but polite criticism is made of the procedural choices taken by the CJEU in the hyperlinks case of Svensson; and the judge tries to apply the law as it stands to the case before him.