On April 7, 2016, AG Wathelet delivered its opinion concerning a preliminary ruling related to the Copyright Directive 2001/29/EC and the question whether or not the posting of a hyperlink to another website containing copyrighted work freely accessible to the public without the authorisation of the copyright holder does constitute an act of communication to the public.
AG Wathelet considers that hyperlinks which are placed on a website and which link to protected works that are freely accessible on another site cannot be classified as an ‘act of communication’ within the meaning of the Directive.
According to AG Wathelet, it is furthermore not important whether the creator of such a hyperlink is or ought to be aware that the copyright holder has not authorised the placement of the works in question on that other website or that, in addition, those works had not previously been made available to the public with the copyright holder’s consent.
The underlying idea is that if users were at risk of infringement proceedings whenever they post a hyperlink to works freely accessible on another website, they would be much more reticent to post them, which would be detrimental to the development of the information society.
Copyright holders may bring legal proceedings for infringement of intellectual property rights against the person who effected the initial communication to the public without his authorisation or apply for an injunction against operators of fileshare websites which act as intermediaries within the meaning of Article 8(3) of Directive 2001/29 and the third sentence of Article 11 of Directive 2004/48.
In the normal course of action, the Court will follow the AG’s opinion.