Linking to infringing content: the story may not be over

Hyperlinking©right fans
have already ordered
their custom-made T-shirts:
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Did you think that the story with copyright and hyperlinks in Europe was over following the decisions of the Court of Justice of the European Union (CJEU) in Svensson [Katposts here] and BestWater [here]?

Well, you were wrong ... at least if you are based in The Netherlands. 

A Katfriend who wishes to retain his/her anonymity but nonetheless tweets as Pacta Sunt Servanda (@TreatyNotifier) has some interesting news to share, concerning a Dutch reality TV star, Playboy and, of course, hyperlinks.

This is what Pacta writes:

"In 2012 Britt Dekker posed for a nude photoshoot for the December issue of Playboy Nederland, where the relevant licensee is Sanoma. 

What happened was that, prior to their publication on Playboy, the pictures were placed on Australian site filefactory.com, and a link (after litigation only available in redacted form) to them appeared on Dutch website geenstijl.nl (known for controversial and sometimes journalism-related content, and not afraid to take a legal fight). 

GSMedia’s Geenstijl published a post regarding the pictures, provided a link to filefactory, and placed an excerpt from a single picture on the website which made it very clear what kind of content was to be expected. 

Sanoma successfully sued Geenstijl before the Amsterdam District Court, but the verdict was partially reversedon appeal by the Amsterdam Court of Appeal, after which the case reached the Supreme Court (Hoge Raad). This has yet to issue its decision but, as it [often] happens [also] with CJEU cases, this court seeks the opinion of an Advocate General (AG) first.

The AG in this case, Robert van Peursem, has now issued his opinion, in which he discussed whether Geenstijl was allowed to place an excerpt from one of the pictures on its website. The AG concluded in the affirmative, taking into consideration freedom of expression concerns and relevant case law from the European Court of Human Rights. 

Most importantly, the opinion also includes an assessment of whether the link to filefactory.com constituted copyright infringement. The issue was not whether a tort ('onrechtmatige daad') was committed as this was clear (and is governed by national law), but rather whether linking to infringing content constituted copyright infringement (in this cases also EU provisions would apply).

Britt Dekker

The AG reviewed relevant case law, ending his analysis with BestWater (at 2.3.29). He concluded that, while in that case the CJEU decided that embedding content is not a communication to a new public within Article 3 of the InfoSoc Directive, it is still unclear whether embedding of illegal content falls within the scope of this provision [but wasn’t the YouTube video at stake in that case a video uploaded without the rightholders’ consent?]. 

At 2.3.34 Van Peursem is remarkably blunt in his statement, assuming that in BestWater the issue of embedding illegal content might have been overlooked by the CJEU:

"[The problem in applying CJEU case law here] is that the new-public doctrine of the CJEU is based on the premise that prior lawful publication exists and Sanoma et al. have not given permission of publication to any public, let alone the public of Geenstijl. Even in the BestWater case this [use of the premise of prior lawful publication] is used: first it is asserted that the content is illegal (with as an extra complication that in that case it was clear that there was no “new public”), but the motivation [of the judgment] is based on a case where legal content exists. I can only comprehend this, assuming that the illegal content character in main argument of the judgment was overlooked [by the CJEU]. Apart from that our case cannot be compared to BestWater, because in BestWater, a link was provided to content placed by a third party on an open platform (YouTube)."

Then Van Peursem indicated that the Swedish Supreme Court (Högsta Domstolen) had asked very relevant questions in C More Entertainment (Case C-279/13) [a case concerning linking through paywall circumvention]. However, the AG learned (much to his disappointment), that all but the fifth question have been retracted after BestWater [who else knew about this?]. 

So, the AG advised the Hoge Raad to stay the proceedings and refer 7 questions to the CJEU (2.3.37), concerning whether linking to illegal content constitutes a “communication to the public”, and to what extent it matters whether the content linked to is available on a digital safe or similar facilities. 

These are the 7 questions that in the AG’s opinion the Dutch Supreme Court should refer to the CJEU:

1) Does it constitute a “communication to the public” in the sense of Art 3(1) of Directive 2001/29, when a person -who is not the copyright holder- makes available a work -which was placed without the consent of the copyright holder by a third person an a website- on his own website through a hyperlink (in other words: in the case of [linking to] so-called illegal content)?

2) If not, does it constitute a “communication to the public” in the sense of above mentioned Article, if restrictive measures on the original site where the illegal content [note: the AG uses the English term] is placed can be circumvented, as meant in point 31 of the decision of 13 February 2014, C-466/12 (Svensson et al/Retriever)? 

Also Merpel was recently
asked to pose for PlayKat

3) If the answer to question 1) is in the affirmative: Is it a relevant factor whether the restriction measures on the original site can be circumvented as meant in point 31 of the decision of 13 February 2014, C-466/12 (Svensson et al/Retriever)?

4) If 2) or 3) are answered in the affirmative: What should be understood as restrictive measures as meant in point 31 of the decision of 13 February 2014, C-466/12 (Svensson et al/Retriever)? Are those (from weak to strong): 

a) material which is hard (but not impossible) to find without an access code

b) subscription access, paywall, password etc, 

or should there be a

c)”digital vault” situation where the content is “fully private (for 1 or more persons) and practically speaking unreachable” (and when is that the case)?

Should in this evaluation also the legal conditions of use that apply for use and access of the source site be taken into account?

5) Should in answering questions 1) and 2) be taken into account to what extent the “hyperlinker” has knowledge of or should have knowledge of the absence of permission of the rights owner, and thus knows that the links directs to “illegal content”?

6) Does it matter in 1) or 2) whether a “new public” is targeted and if so: how should this be determined, in the case that there is no “original permission” [original: permission given to the third party to place it on its website] of the copyright owner, as the case is about linking to illegal content?

7) Are there any other circumstances that should be taken into account to answer the question whether providing access through hyperlinks to illegal content should be regarded a communication to the public?"

Thanks so much Pacta for this great update from The Netherlands. The decision of the Hoge Raad is due on 3 April, and The IPKat will let you know what it decides to do. Stay tuned!