Is Hyperlinking to Infringing Material Illegal? The Answer is Around the Corner.
With this contribution we aim to provide an overview on current events in the Netherlands for copyright and Internet enthusiasts. In the case at hand, the Dutch Supreme Court (Hoge Raad) asks for a preliminary ruling by the Court of Justice of the European Union (CJEU) in the Sanoma/Geenstijl-case, by way of its judgment dated 3 April 2015.
Geenstijl (a controversial Dutch broadcasting platform) provided a hyperlink on its website to a Playboy photo shoot located on a - not by search engines indexated - website. Sanoma is the publisher of Playboy in the Netherlands (Playboy is a magazine with a predominantly male fan base). The website with the photo shoot was practically unfindable without the provision of the hyperlink and the photo shoot was placed without the consent of the copyright holder.
Paraphrased, the key question for the CJEU is: Does a hyperlink (supplied by anyone other than the copyright holder) to a website where a work is placed without the consent of the copyright holder fall within the scope of the “communication to the public” in the sense of Art 3(1) of Directive 2001/29?
Based on earlier decisions of the CJEU, preliminary questions were unavoidable. In the Svensson-case (C-466/12) the CJEU ruled that the provision of a hyperlink constitutes an act of 'making available'. This means that providing a hyperlink is directly relevant for copyright law. However, the absence of a 'new public' was decisive for the hyperlink not being labelled as a 'communication to the public'. The Svensson-case is not directly applicable because in Svensson the copyrighted work was placed on the website with consent of the copyright holder.
In the BestWater-case (C-348/13), regarding the embedding of a YouTube video, it was uncertain whether the content was placed with or without consent of the copyright holder.
Also we believe that the formulation of the preliminary question in the BestWater-case didn't leave the CJEU much choice. The preliminary question asked by the German Supreme Court (Bundesgerichtshof) already included, as an established fact, the absence of a 'new public'. The absence of a 'new public' is at least somewhat debatable in the BestWater-case.
The C More Entertainment-case (C-279/13) from Sweden also had very relevant preliminary questions regarding hyperlinks. However, the Advocate General Van Peursem concludes in his opinion for the Sanoma/Geenstijl-case that the preliminary questions have been retracted after the Svensson-ruling.
The Dutch Supreme Court concludes that uncertainty remains about the Sanoma/Geenstijl-case and therefore asks the CJEU for a preliminary ruling. To be continued.