The CJEU quite recently handed down its decision in the GS Media case (C-160/15, available here). In said case, the CJEU revisits the notion of ‘communication to the public’ of the InfoSoc directive. The case concerns a situation where the material has originally been placed on the internet without the consent of the copyright owner. If the content has been made freely available on another website with the consent of a copyright holder, there would usually be no ‘communication to the public’ (see e.g., the Svensson decision, C-466/12 available here).
In GS Media, the CJEU distinguished between i. non-commercial use and ii. use for profit. If the hyperlink is placed on a website that operates for profit, the person who posts the hyperlink has a duty to check if the content was originally placed on the web without the consent of the copyright owner. Further, if the website operates for profit, it is presumed that the posting is made with full knowledge of the protected nature of the relevant work and the potential lack of consent of the copyright owner. This presumption can however be rebutted.
If the posting of the hyperlink is made without pursuit of any financial gain, the relevant test is whether the illegal nature of the publication of the works was known or could not reasonably have been known. If there is no such knowledge, there is no ‘communication to the public’.
The holding of the CJEU in GS Media calls for diligence especially for commercial players. This is because it establishes a presumption that the person posting the hyperlink has knowledge of whether the work was placed with the consent of the copyright owner. The possibility to rebut the presumption will probably be limited to situations where it can be shown that the site owner did de facto carry out adequate checks to ensure that the works were not illegally placed on the web, but it later turns out that the works were nevertheless originally illegally published.
Hyperlinks are essential for the functioning of the whole internet. Is the distinction of profit-making vs. non-commercial entities justified and persuasive? The presumption for commercial entities developed by the court could be quite burdensome to rebut. Also, did the CJEU correctly balance the right holder’s interests with the interests of the public to access information and the smooth functioning of the internet?