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The Berne Convention for the Protection of Literary and Artistic Works, 1886 (the Berne Convention) is the principal international treaty governing copyright.

In the European Union (the EU), copyright laws derive from directives aimed at harmonising laws among the member states. The directives are, therefore, implemented by national legislation at each member state under the regulatory framework established by the directives.

Copyright laws are, among other things, there to –

• give the authors of copyrightable works control over the usage of their work by third parties;
• encourage creation and innovation; and
• incentivise the creators.

The 21st century brought about and is appropriately characterised as the ‘digital age’. The digital age is succeeded by the so-called ‘social age’. In the social age, the Internet bears witness – on a daily basis – to the uploading and sharing of information on websites and social media platforms. Information includes books, musical pieces, films, pictures and drawings that are considered as works of art and/or literary works protected by copyright laws pursuant to the Berne Convention.

In terms of arts 2 and 3 of Directive 2001/29/EC (the InfoSoc Directive) respectively, the author of a work has the exclusive rights to authorise or prohibit any reproduction of the work and communication of such work to the public by wire or wireless means.

Generally, this means that reproducing and/or communicating copyrightable work to the public, without the author’s prior permission would be considered as a violation of their copyright.

Article 5 of the InfoSoc Directive provides for various exemptions under which copyright protected work may be reproduced or communicated to the public without the author’s prior consent. By way of example and a common occurrence, art 5(3)(a) provides for use of the authors work without prior authorisation in an event where the ‘use for the sole purpose of illustration for teaching or scientific research, as long as the source, including the author’s name, is indicated, unless this turns out to be impossible’. The above exempted use is not without a limitation as the InfoSoc Directive provides that such use should not be for commercial purposes.

On a cursory glance through the InfoSoc Directive, one can self-assuredly say that the act of placing copyrighted work on the Internet undisputedly constitutes an act of communication to the public by wireless means. However, as it will be shown below, there are underlying technicalities attached to the question whether or not an act of placing copyrighted work on the Internet constitutes an act of communication to the public by wireless means. Further, as interpreted before the appropriate fora, in the social age, communicating copyrighted work to the public goes beyond the mere act of placing such work on the Internet.

As is common with loosely drafted provisions in legislation, a question of law has arisen as to whether providing a hyperlink on a website, which hyperlink gives the general public access to a work that would normally not be available to them constitutes an act of communication to the public and thus, as required in terms of the InfoSoc Directive, prior permission to provide the hyperlink should be obtained from the copyright holder?

In the landmark case of Svensson and Others v Retriever Sverige AB [2014] EUECJ C-466/12 the Court of Justice of the European Union (the CJEU) in giving its preliminary judgment held that ‘Article 3(1) of [the InfoSoc] Directive 2001/29 must be interpreted as meaning that the provision on a website of clickable links to works freely available on another website does not constitute an “act of communication to the public”, as referred to in that provision.’

Therefore, when providing a hyperlink, one should take the accessibility of the work to which the hyperlink leads into consideration. The provision of a hyperlink, which for example, bypasses a password that is protecting copyrighted work means that the work would ordinarily not be available to the general public and, as a result, prior authorisation to provide such a hyperlink should be obtained from the copyright holder.

Notwithstanding the clarification provided by the CJEU in the Svensson case, the national courts of member states still found it difficult to interpret or apply that precedent in giving effect to
art 3(1) of the InfoSoc Directive. In the case of GS Media BV v Sanoma Media Netherlands BV and Others (C-160/15) ECLI: EU: C: 2016: 644, the Dutch Supreme Court approached the CJEU, seeking clarity on the CJEU’s judgment in the Svensson case.

Specifically, the Dutch Supreme Court sought clarity on the following questions:

‘(a) If anyone other than the copyright holder refers by means of a hyperlink on a website controlled by him to a website, which is managed by a third party and is accessible to the general internet public, on which the work has been made available without the consent of the rightholder, does that constitute a “communication to the public” within the meaning of Article 3(1) of Directive 2001/29?

(b) Does it make any difference if the work was also not previously communicated, with the rightholder’s consent, to the public in some other way?

(c) Is it important whether the “hyperlinker” is or ought to be aware of the lack of consent by the rightholder for the placement of the work on the third party’s website mentioned in (a) above and, as the case may be, of the fact that the work has also not previously been communicated, with the rightholder’s consent, to the public in some other way?’

The CJEU acknowledged that the InfoSoc Directive is silent as to the meaning and scope of the concept of ‘communication to the public’. Accordingly, this concept ought to be interpreted having regard to the objectives of the InfoSoc Directive.

The CJEU went on to identify one of the key objectives of the InfoSoc Directive, which is to establish a high level of protection of authors, allowing them to obtain an appropriate reward for the use of their works, including on the occasion of communication of the work to the public.

The court remarked that a distinction ought to be drawn between the decision in Svensson and the current case. In the Svensson case, the CJEU was faced with the question where the hyperlink leads to protected works, which have been made freely available on another website, where the copyright holders of those works have consented to such communication, which consent accordingly includes all Internet users as the public.

Given the above distinction, the CJEU in the GS Media case set out other key guidelines, in addition to the principle set out the Svensson case that must be taken into consideration in determining what constitutes a communication to the public within the prescripts of art 3 of the InfoSoc Directive. Such guidelines can be briefly summarised as follows:

• The act of providing a hyperlink for financial gain (that is, for profit) to work, which was illegally placed on the Internet constitutes a communication to the public. Accordingly, a person posting a hyperlink for financial gain is reasonably expected to conduct the necessary checks to ensure that such work is not illegitimately published on the website to which the hyperlink leads.
• The provision of a hyperlink constitutes a communication to the public when a person providing the hyperlink knows or ought to have known that the hyperlink that they posted provides access to work that has been illegally placed on the Internet (an example of a person who ought to have known is a person that has been notified by the copyright holder).
• A hyperlink that enables users to circumvent the restriction placed on the access to protected work on the website where the work is originally posted constitutes a communication to the public.
• When the hyperlink does not provide access to the protected work by a ‘new public’, there cannot be communication to the public.
• A communication to the public does not arise when the posting of a hyperlink to a work that is freely available on another website is carried out by a person who, in so doing, does not pursue a financial gain. Such a person is presumed to not know and is reasonably not expected to have known that the work had been published on the Internet without the consent of the copyright holder. Further, since such work is already available with unrestricted access on the website to which the hyperlink provides access, all Internet users could, in principle, readily have access to the work without the hyperlink concerned.

In the GS Media case, the CJEU made a preliminary ruling (subject to the verification to be made by the referring court) that the act in question constituted a communication to the public in that, the copyright holder of the work concerned had not consented to the publication of such work on the Internet and that the hyperlink provider was aware of this fact. Further, the act of providing the hyperlink was carried out for profit.

It appears, therefore, that when faced with the question of whether an act constitutes a communication to the public, the national courts of the EU member states ought to interpret this concept broadly rather than narrowly and subjectively rather than objectively.

While some intellectual property law experts still criticise the precedent set by the CJEU for want of completeness, the current precedent is adequate for one to comprehend that:

• a person (natural or juristic) who posts a hyperlink for profit, should always verify whether the operator of the website to which the hyperlink leads, has obtained consent from the copyright holder prior to that work being placed on the website; and
• a person (natural or juristic) who posts a hyperlink cannot plead an ignorance of law defence where they know or ought to have known that the copyright holder of the work to which the hyperlink leads has not consented to that publication.

Ntsako Kennedy Ngonyama LLB (University of Limpopo) is a candidate legal practitioner at Motsoeneng Bill Attorney Inc in Johannesburg.

This article was first published in De Rebus in 2019 (Aug) DR 19.