Article 3 (1) of Directive 2001/29/EC on the “harmonisation of certain aspects of copyright and related rights in the information society” legally communicating copyrighted works to the public depends on the copyright holders authorization.
According to Advocate General Wathelet, who delivered his Opinion in Case C – 160/15 yesterday, a work is not per se communicated to the public by posting a hyperlink to a website, which publishes the work without the copyright holders authorization. Correspondingly, posting such hyperlink does not in general have to be authorized by the copyright holder.
If a work is communicated to the public by posting a hyperlink depends on whether the hyperlink simply makes the copyrighted materials in question easier to find or the hyperlink is indispensable to the copyrighted materials being made available to internet users. In case such hyperlink just makes it easier to find the copyrighted material, this material would still be just as accessible to internet users, even if the hyperlink was deleted.
Under such circumstances, the only “act of ‘making available’ is the action of the person who effected the initial communication“, so that the motivation of those setting hyperlinks and the fact that they actually knew or should have known that the copyrighted material had initially been made available to the public without the authors authorisation is irrelevant.
Was the notion of “communicating to the public” interpreted differently, the Advocate General explained, the functioning of the internet would considerably be impeded and the Directive’s main goal to develop the information society in Europe would be infringed.
Although the circumstances might have been clear in this case, where the plaintiff had linked to a third party’s website that made photographs publicly available that had originally been published in Playboy, internet users were generally not able to verify, if content that was freely available on the internet had been made availabe with or without the rightholders consent. If they were running the risk of being held liable for copyright infringement everytime they linked to third party content, they’d hesitate to post such links, making information in general less accessible.
The Advocate General’s Opinion is not binding on the European Court of Justice. However, the court usually tends to follow these opinions.
The press release can be found here.