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, provides in article 3 that any communication to the public of a work (including simply "making available") must be authorized by the copyright holder.
Recently, the Advocate General ("AG") of the Court of Justice of the EU, Melchior Wathelet, has issued a surprising opinion in the Sanoma case (C-160/15) in which the Court must decide on a request for a preliminary ruling from the Supreme Court of the Netherlands on the concept of "communication to the public": namely, whether or not posting a hyperlink on the Internet amounts to an act of "communication to the public" when it facilitates access to a work which has been published in another website without the authorization of the author.
In the AG's opinion, the making available to the public of a hyperlink forwarding to a website which has published without restrictions of access a work without the authorization of the rightholder does not amount to an act of communication to the public. And therefore, such a hyperlink would not infringe the copyright over the published work.
The Advocate General opines that hyperlinks which lead to protected works only serve to facilitate their discovery on a given website, but are not ‘making them available’ to the public when they are already freely accessible on such other websites. According to the Advocate General the actual act of ‘making available’ is the action of the person who performed the initial communication.
It is adduced that the intervention of the person including a hyperlink in his website is not indispensable to make the work in question available to internet users. Such users could access the work in absence of the hyperlink, simply by directly accessing the website where the work is uploaded.
Regrettably, the Advocate General makes several errors in his argumentation; which leads him to an incorrect conclusion.
The base error is incorrectly interpreting the Svensson judgment on the concept of "new public". In that judgment the ECJ stated that only the communication made to a "new public" (an audience that was not taken into account by the copyright holders when they authorized the initial communication to the public) may be considered a "communication to the public". For this reason, when in Svensson the ECJ refers to links that lead to works that are "freely" available on another website, it is not referring to works that can be de-facto found without access restrictions, but to works that are de-facto but also legally (because they have been published without restrictions by the author or with his consent) freely accessible by all Internet users. Note that in Svensson the linked works had been published without restriction of access by their authors.
Therefore, in order to determine what public is "new" with respect to a previous publication, the comparison cannot be made with respect to the addressees of an infringing public communication but with respect to the addressees of a communication authorized by the right-holder -where such authorized communication exists. Obviously, if the right-holder has not yet released or allowed a publication, any act of making publically available would generate a "new public".
It is obvious that any hyperlink -that works- is an act of making available (of the linked content). And, therefore, it is an act of communication to the public. The only thing that may be debated with respect to each hyperlink is whether (i) it should be considered part of the same act of communication made by the linked web (a continuation of the same); or (ii) it is an independent and distinct act of public communication (when the hyperlink is indispensable for such access).
Normally, the vast majority of the hyperlinks belong to the first group: they constitute a participation in an act of public communication initiated by a third party (the owner of the linked website). They are part of the same act of public communication or an extension of it. Therefore, the lawfulness or illegality of the hyperlink depends on the lawfulness or illegality of the public communication to which the hyperlink is directing.
Only when a hyperlink contributes something new (e.g.: enabling the finding of content, circumvention of measures of restriction of access of the linked website, etc.) it could be considered a distinct act of communication to the public (because its use turns out to be indispensable to gain access).
Thus, the criterion of the "indispensability" of a link for accessing to the work, which the Attorney General uses in its Opinion (paragraphs 54, 57, 59, 60, 69) is only relevant to see what type of act of public communication it is (the same one or different from the one initiated by the linked website), but not to determine whether or not the link is an act of communication to the public (it always is).
What the Advocate General does is treating a work protected by copyright as if it were a secret know-how. Once the secret is destroyed–due to disclosure of the confidential information by a third party- anyone may subsequently divulgate it. The AG intends to extrapolate this scheme into copyright: in a string of discloser-linkers only the first violation of the right of communication to the public would be prosecutable (the one made by the website that first publicized a protected work without permission). Those who later provided hyperlinks directed to this first infringing publication would be exempt. Obviously, this construction is revolutionary, because it would shatter the possibility to enforce copyright on the Internet. Anyone who desired to infringe would only need to find an intermediate entity or a "straw man" willing to infringe first; it would then suffice to link to the public communication made by that first infringer in order to get away unpunished.
If the opinion of the Advocate General was followed, the effect would be doubly surprising: (i) a sort of exhaustion of the exclusive right of communication to the public (ii) produced by a communication to the public non-authorized by the author. Let's hope that the ECJ reaches a more fortunate solution.
What is even more surprising is that the AG considers that any other interpretation of article 3 of Directive 2001/29/EC would significantly impair the functioning of the Internet and undermine one of the main objectives of the Directive, namely the development of the information society in Europe. He reasons that, as a general rule, internet users lack the knowledge and the means to verify whether the initial communication to the public of a protected work freely available on the internet was done with or without the consent of the holder of the copyright; and that, if internet users risk liability for copyright infringement every time they place a hyperlink to works which are freely accessible on another internet site, they would be much more hesitant to post those links, to the detriment of the proper functioning and very architecture of the internet as well as the development of the information society.
This objection is unfounded. The AG mixes the cessation actions with the action for damages. The fact that a cessation action is always available to the copyright holder in cases of infringement has nothing to do with the possibility of claiming damages from the infringer. This possibility will depend on the facts of the case. And, as a general rule, a lay Internet user may be presumed to be ignorant of whether the initial communication to the public of a protected work freely available on the internet was done with or without the consent of the holder of the copyright; and accordingly, such an internet user would not be liable for damages. This is what should be applied by analogy with the rules provided by articles 13 and 14 of the 'Directive on electronic commerce' for providers of an information society service (Directive 2000/31/EC of the European Parliament and of the Council of 8 June 2000). It must be remembered that the providers of an information society service are not subject to liability when they do not have actual knowledge of illegal activity or information and, as regards claims for damages, are not aware of facts or circumstances from which the illegal activity or information is apparent; or when, upon obtaining such knowledge or awareness, they act expeditiously to remove or to disable access to the information. Hence, if these companies or professionals are protected from damages claims when they ignore the lack of consent of a copyright holder regarding a communication to the public, a fortiori an Internet user from the general public should at least be entitled to the same level of protection.