GS Media BV v Sanoma Media Netherlands BV and Others.
Date: 2016-09-08
28


Under that provision, authors thus have a right which is preventive in nature and allows them to intervene, between possible users of their work and the communication to the public which such users might contemplate making, in order to prohibit such use (see, to that effect, judgments of 15 March 2012, SCF, C‑135/10, EU:C:2012:140, paragraph 75, and 31 May 2016, Reha Training, C‑117/15, EU:C:2016:379, paragraph 30).
29


As Article 3(1) of Directive 2001/29 does not define the concept of ‘communication to the public’, its meaning and its scope must be determined in light of the objectives pursued by that directive and of the context in which the provision being interpreted is set (see, to that effect, judgments of 7 December 2006, SGAE, C‑306/05, EU:C:2006:764, paragraphs 33 and 34, and 4 October 2011, Football Association Premier League and Others, C‑403/08 and C‑429/08, EU:C:2011:631, paragraphs 184 and 185).
30


In that regard, it should be borne in mind that it follows from recitals 9 and 10 of Directive 2001/29 that the latter’s objective 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 to the public. It follows that ‘communication to the public’ must be interpreted broadly, as recital 23 of the directive indeed expressly states (see, to that effect, judgments of 4 October 2011, Football Association Premier League and Others, C‑403/08 and C‑429/08, EU:C:2011:631, paragraph 186, and 7 March 2013, ITV Broadcasting and Others, C‑607/11, EU:C:2013:147, paragraph 20).
32


As the Court has previously held, the concept of ‘communication to the public’ includes two cumulative criteria, namely, an ‘act of communication’ of a work and the communication of that work to a ‘public’ (judgments of 13 February 2014, Svensson and Others, C‑466/12, EU:C:2014:76, paragraph 16; 19 November 2015, SBS Belgium, C‑325/14, EU:C:2015:764, paragraph 15; and 31 May 2016, Reha Training, C‑117/15, EU:C:2016:379, paragraph 37).
33


The Court has, moreover, specified that the concept of ‘communication to the public’ requires an individual assessment (see judgment of 15 March 2012, Phonographic Performance (Ireland), C‑162/10, EU:C:2012:141, paragraph 29 and the case-law cited, relating to the concept of ‘communication to the public’, for the purposes of Article 8(2) of Directive 2006/115/EC of the European Parliament and of the Council of 12 December 2006 on rental right and lending right and on certain rights related to copyright in the field of intellectual property (OJ 2006 L 376, p. 28), it having the same scope in that directive as in Directive 2001/29 (see, to that effect, judgment of 31 May 2016, Reha Training, C‑117/15, EU:C:2016:379, paragraph 33)).
34


For the purposes of such an assessment, account has to be taken of several complementary criteria, which are not autonomous and are interdependent. Since those criteria may, in different situations, be present to widely varying degrees, they must be applied both individually and in their interaction with one another (judgments of 15 March 2012, SCF, C‑135/10, EU:C:2012:140, paragraph 79; 15 March 2012, Phonographic Performance (Ireland), C‑162/10, EU:C:2012:141, paragraph 30; and 31 May 2016, Reha Training, C‑117/15, EU:C:2016:379, paragraph 35).
35


Of those criteria, the Court emphasised, in the first place, the indispensable role played by the user and the deliberate nature of its intervention. The user makes an act of communication when it intervenes, in full knowledge of the consequences of its action, to give access to a protected work to its customers, and does so, in particular, where, in the absence of that intervention, its customers would not, in principle, be able to enjoy the broadcast work (see, to that effect, judgments of 15 March 2012, SCF, C‑135/10, EU:C:2012:140, paragraph 82 and the case-law cited, and 15 March 2012, Phonographic Performance (Ireland), C‑162/10, EU:C:2012:141, paragraph 31).
36


In the second place, it specified that the concept of the ‘public’ refers to an indeterminate number of potential viewers and implies, moreover, a fairly large number of people (see, to that effect, judgments of 15 March 2012, SCF, C‑135/10, EU:C:2012:140, paragraph 84 and the case-law cited, and 15 March 2012, Phonographic Performance (Ireland), C‑162/10, EU:C:2012:141, paragraph 33).
37


Moreover, it is settled case-law of the Court that, to be categorised as a ‘communication to the public’, a protected work must be communicated using specific technical means, different from those previously used or, failing that, to a ‘new public’, that is to say, to a public that was not already taken into account by the copyright holders when they authorised the initial communication to the public of their work (judgment of 13 February 2014, Svensson and Others, C‑466/12, ECLI:EU:C:2014:76, paragraph 24, and order of 21 October 2014, BestWater International, C‑348/13, not published, EU:C:2014:2315, paragraph 14 and the case-law cited).
38


In the third place, the Court has held that it is relevant that a ‘communication’, within the meaning of Article 3(1) of Directive 2001/29, is of a profit-making nature (see, to that effect, judgments of 4 October 2011, Football Association Premier League and Others, C‑403/08 and C‑429/08, EU:C:2011:631, paragraph 204; 15 March 2012, SCF, C‑135/10, EU:C:2012:140, paragraph 88; and 15 March 2012, Phonographic Performance (Ireland), C‑162/10, EU:C:2012:141, paragraph 36).
42


In that context, it noted that, given that the hyperlink and the website to which it refers give access to the protected work using the same technical means, namely the internet, such a link must be directed to a new public. Where that is not the case, in particular, due to the fact that the work is already freely available to all internet users on another website with the authorisation of the copyright holders, that act cannot be categorised as a ‘communication to the public’ within the meaning of Article 3(1) of Directive 2001/29. Indeed, as soon as and as long as that work is freely available on the website to which the hyperlink allows access, it must be considered that, where the copyright holders of that work have consented to such a communication, they have included all internet users as the public (see, to that effect, judgment of 13 February 2014, Svensson and Others, EU:C:2014:76, paragraphs 24 to 28, and order of 21 October 2014, BestWater International, C‑348/13, not published, EU:C:2014:2315, paragraphs 15, 16 and 18).
43


Accordingly, it cannot be inferred either from the judgment of 13 February 2014, Svensson and Others, (C‑466/12, EU:C:2014:76) or from the order of 21 October 2014, BestWater International, (C‑348/13, not published, EU:C:2014:2315) that posting, on a website, hyperlinks to protected works which have been made freely available on another website, but without the consent of the copyright holders of those works, would be excluded, as a matter of principle, from the concept of ‘communication to the public’ within the meaning of Article 3(1) of Directive 2001/29. Rather, those decisions confirm the importance of such consent under that provision, as the latter specifically provides that every act of communication of a work to the public is to be authorised by the copyright holder.
45


In that regard, it should be noted that the internet is in fact of particular importance to freedom of expression and of information, safeguarded by Article 11 of the Charter, and that hyperlinks contribute to its sound operation as well as to the exchange of opinions and information in that network characterised by the availability of immense amounts of information.
48


Indeed, such a person, by making that work available to the public by providing other internet users with direct access to it (see, to that effect, judgment of 13 February 2014, Svensson and Others, C‑466/12, EU:C:2014:76, paragraphs 18 to 23) does not, as a general rule, intervene in full knowledge of the consequences of his conduct in order to give customers access to a work illegally posted on the internet. In addition, where the work in question was already available with unrestricted access on the website to which the hyperlink provides access, all internet users could, in principle, already have access to it even the absence of that intervention.
49


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, for example owing to the fact that he was notified thereof by the copyright holders, it is necessary to consider that the provision of that link constitutes a ‘communication to the public’ within the meaning of Article 3(1) of Directive 2001/29.
50


The same applies in the event that that link allows users of the website on which it is posted 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, the posting of such a link then constituting a deliberate intervention without which those users could not benefit from the works broadcast (see, by analogy, judgment of 13 February 2014, Svensson and Others, C‑466/12, EU:C:2014:76, paragraphs 27 and 31).
51


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.