In its recent decision in GS Media v. Sanoma Media Netherlands, the Court of Justice of the European Union held that the a link to unlicensed copyright materials on a third party website can infringe the copyright in those materials. The decision marks a significant development that was welcomed by rightholders but dismayed many in the digital industry and could be seen as a serious threat to the free circulation of information through digital channels.
Communication to the public by wire or wireless means
The case examined the concept of “communication to the public” under Article 3 of the Information Society Directive. The term was introduced in the 1971 Paris Act of the Berne Convention granting authors, among other things, the exclusive right to authorise “the broadcasting of their works or the communication thereof to the public by any other means of wire or diffusion of signs, sounds or images” (Article 11bis). The focus at that time was on television, radio and satellite broadcasts as well as cable television transmissions.
Copyright evolved in response to the development of the digital environment and in 1996, when the internet was just about to reach every home, the WIPO Copyright Treaty was adopted. The treaty added to the authors’ rights “the exclusive right of authorizing 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 these works from a place and at a time individually chosen by them”. The last phrase captured the then-new paradigm of “on-demand services” and the dissemination (or “making available”) of content online through the Internet.
Article 3 of the Information Society Directive uses similar language and extends these rights to various rightholders such as authors, producers of sound recordings and films and broadcasters. The broad concept of ‘communication to the public’ was implemented in UK copyright law in 2003 replacing previous provisions on broadcasting and cable transmissions.
Television and satellite retransmission
In 2006, the EU court first considered the concept of ‘communication to the public’ in its decision in Sociedad General de Autores y Editores España (SGAE) v. Rafael Hotels. The Court held that the provision of free-to-air television broadcasts at hotel guestrooms amounted to “communication to the public”. Accordingly, broadcasters were entitled to charge hotel operators for making their transmissions available through television sets at guestrooms (even for subscription-free public broadcasts).
The EU Court revisited the issue in 2011 in Football Association Premier League v. QC Leisure. The case considered the use by UK pubs of decoders purchased in other countries to show satellite transmissions of Premier League matches on television sets installed at the premises (thereby avoiding the commercial fees charged by the broadcaster). As in SGAE, it was held that the pub operators were communicating the broadcast to the public by enabling the broadcast to be played to the public at the pub.
In both cases the question whether the technical acts that enabled customers to watch television broadcasts at the premises amounted to an act of ‘communication to the public’ turned on whether that act or “intervention” by the operator defined a “new public” for the transmission. The Court reasoned that the broadcasters envisaged their transmissions being received by private members of the public. The re-transmissions of the signal to hotel guestrooms or to the television sets at a pub were not within the original intention and, therefore, these acts defined a “new public”. The Court followed the same reasoning in a third case, Phonographic Performance (Ireland) Ltd v Ireland (2012), which concerned the ‘communication to the public’ of sound recordings (once again, in hotels).
The application of the rule to hyperlinks
The question whether the provision of a hyperlink in one website to content available on another amounts to ‘communication to the public’ first came before the EU Court in 2014 in Svensson v. Retriever Sverige. The Court held that there was no ‘communication to the public’ on the grounds that the link did not create a “new public”. The Court explained that once the content was freely available to the general public through one website, the provision of a link to that site on another site did not define a “new public”.
The logic of the Svensson decision can be questioned. Just like the retransmission of a television signal to the customers of a hotel or pub may be seen as defining a “new public” by reason of the physical environment, a link on a website can define a new audience for the content, for example where the content is originally posted on an obscure site and the link is provided on a popular site. Indeed, hyperlinks are one of the primary ways in which content can become viral through the digital environment. From that point of view, it is certainly arguable that a link may well open up new audiences and defines a “new public” for content which is already available online.
Indeed that was the factual background in the GS Media case. The content was posted on a little-known website (which apparently specialised in releasing unpublished and unlicensed images). By contrast, the site where the links were provided was one of the most popular media sites in the Netherlands. It is easy to see why the EU Court was tempted to hold that the link in that case defined a “new public” for the content.
But the decision in GS Media was not based on that factor. The Court considered the reasonable expectations of the rightholders in order to assess whether the ‘intervention’ through the provision of the link amounted to “communication to the public”. In a departure from its decision in Svensson, the Court held that it did, because the rightholder in that case did not authorise the original posting of the content and therefore did not envisage its re-distribution through the link.
In this respect the decision in GS Media is highly problematic. The link was held to infringe the content not because it defined a “new public”, but because the content was unlicensed in the first place. That consideration played no role in previous cases, which looked at whether the “re-transmission” changed the way the content was distributed. The Court in GS Media relied on legislation concerning the right to authorise “communications to the public” of copyright material and applied it to address a wholly different matter concerning the re-distribution of infringing materials.
The new rule and what it actually means
Effectively, the decision in GS Media introduces a new form of judge-made “secondary infringement”, that is, copyright infringement relating to the distribution of infringing copies. Liability for secondary infringement typically dependent on the commercial nature of the activity and an element of awareness or intent. The Court’s decision laid down similar conditions to establish liability for copyright infringement by providing a hyperlink. The Court held that a website operator that provides a link to unlicensed content on another website is only liable if it was aware or ought to have been aware that the content was unlicensed. The Court held further that if the link is provided by a commercial (‘for-profit’) website the operator’s awareness of the infringing nature of the content much be assumed.
The Court acknowledged the objective difficulty in ascertaining whether or not content on a third party’s website is licensed. However, it held that if a link is provided as part of a commercial activity the operator should undertake the necessary verification. Further, it noted that rightholders should be able to issue take-down notices to website operators to require the removal of links to unlicensed content and upon receipt of such notice the provider of the link would no longer be able to protest innocence.
The EU legislation that guarantees for rightholders the exclusive right to authorise the communication to the public of their works does not suggest the elaborate set of rules that the Court in GS Media devised. The legislation is unequivocal. If an act of retransmission amounts to “communication to the public” it requires a licence regardless as whether the content was originally licensed. The fact that the content was licensed did not make any difference in the SAEG, FAPL or PPL cases. The question was whether its re-distribution was legitimate.
Not only is there no basis in the legislation for creating a new form of secondary infringement, the idea is inconsistent with it express provisions. Article 3(3) of the Information Society Directive provides that an act of communication to the public or making available to the public does not exhaust those rights. Posting materials on a website is undoubtedly “communication to the public”. If a rightholder authorises the posting, according to Article 3(3) the rights are not exhausted. Any further “communication to the public” (such as posting on another website) is clearly an act restricted by copyright. Therefore, if a hyperlink amounts to “communication to the public” it must be an act restricted by copyright whether or not the posting of the content on the original site was licensed. The distinction made by the Court between links to legitimate content and links to unlicensed content on a third party site is plainly inconsistent with the provision against exhaustion.
Hyperlinks are ubiquitous in the digital environment. They are a key form in the way information is disseminated electronically. Links are incorporated in the results of Internet search engines, they form much of the communications on social media services and in other formats. This means that unlicensed content may be widely distributed through links. However, it also means that the ability to use copyright to restrict the use of links could seriously hamper the free flow of information.
Quite how far the GS Media rule goes is unclear. It is difficult to see, for example, a distinction between links on websites to links provided on mobile applications, or why search engines should be exempt from the rule. As long as the link is provided “to the public” the rule seems to apply. It seems that rightholders can now issue take-down notices not only to websites displaying links to unlicensed content but also to Google, for example, to demand the removal of links to infringing materials from search results, or even to journalists, politicians and celebrities who use social media to communicate to the public. Take-down notices relating to links to unlicensed content could be followed by infringement claims.
The extension of copyright protection to hyperlinks may help to reduce the dissemination of infringing copyright materials to the public through electronic channels, but it is questionable whether a measure of such significance having a potentially serious impact on freedom of speech should have been introduced by the Court through the interpretation of legislation that was not designed for that purpose.
 EU directive 2001/29
 Section 20 of the Copyright, Designs and Patents Act 1988
 Cf. sections 22 to 26 of the 1988 Act