Opinion of the Advocate General — ECLI:EU:C:2016:221
Date: 2016-04-07
Language of the case: Dutch
Subject matter: Intellectual, industrial and commercial property;Approximation of laws
Procedure: Reference for a preliminary ruling
Origin: Netherlands

Summary — Judgment of the Court (Second Chamber), 8 September 2016 1. Approximation of laws — Copyright and related rights — Directive 2001/29 — Harmonisation of certain aspects of copyright and related rights in the information society — Aim (Charter of Fundamental Rights of the European Union, Arts 11 and 17(2); European Parliament and Council Directive 2001/29, Recitals 3, 9, 10, 23 and 31) 2. Approximation of laws — Copyright and related rights — Directive 2001/29 — Harmonisation of certain aspects of copyright and related rights in the information society — Communication to the public — Concept – Posting, on a website, of hyperlinks to protected works, freely available on another website without the rightholder’s consent — Importance of the profit-making nature of that posting and of the knowledge of the unlawful nature of the publication of those works (European Parliament and Council Directive 2001/29, Art. 3(1)) 1. See the text of the decision. (see paras 30, 31) 2. Article 3(1) of Directive 2001/29 on the harmonisation of certain aspects of copyright and related rights in the information society must be interpreted as meaning that, in order to establish whether the fact of posting, on a website, hyperlinks to protected works, which are freely available on another website without the consent of the copyright holder, constitutes a ‘communication to the public’ within the meaning of that provision, it is to be determined whether those links are provided without the pursuit of financial gain by a person who did not know or could not reasonably have known the illegal nature of the publication of those works on that other website or whether, on the contrary, those links are provided for such a purpose, a situation in which that knowledge must be presumed. The concept of ‘communication to the public’ requires an individual assessment. For the purposes of that assessment, it is accordingly necessary, when the posting of a hyperlink to a work freely available on another website is carried out by a person who, in so doing, does not pursue a profit, to take account of the fact that that person does not know and cannot reasonably know that that work had been published on the internet without the consent of the copyright holder. Indeed, such a person does not intervene, as a general rule, in full knowledge of the consequences of his conduct in order to give customers access to a work illegally posted on the internet. In contrast, where it is established that such a person knew or ought to have known that the hyperlink he posted provides access to a work illegally placed on the internet, the provision of that link constitutes a ‘communication to the public’ within the meaning of Article 3(1) of Directive 2001/29. The same applies in the event that that link allows users to circumvent the restrictions taken by the site where the protected work is posted in order to restrict the public’s access to its own subscribers. Furthermore, when the posting of hyperlinks is carried out for profit, it can be expected that the person who posted such a link carries out the necessary checks to ensure that the work concerned is not illegally published on the website to which those hyperlinks lead, so that it must be presumed that that posting has occurred with the full knowledge of the protected nature of that work and the possible lack of consent to publication on the internet by the copyright holder. In such circumstances, and in so far as that rebuttable presumption is not rebutted, the act of posting a hyperlink to a work which was illegally placed on the internet constitutes a ‘communication to the public’ within the meaning of Article 3(1) of Directive 2001/29. (see paras 33, 47-51, 55, operative part)