Linking and secondary liability for copyright infringement. A look into the Spanish approach.

In the pending and closely watched GS Media case, the CJEU is asked to further clarify whether linking to copyrighted content may in some instances constitute a primary copyright infringement.

It is not the first time the CJEU addresses the nature of links under copyright law. It already tackled the question in Svensson, where it held 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’,” under the meaning of Article 3(1) of the InfoSoc Directive. The CJEU reached that conclusion by reasoning that while a link constitutes an ‘act of communication,’ links to works freely available on another website do not communicate those works to a new public, i.e. a public that was not taken into account by the copyright holders when they authorised the initial communication. That conclusion was held again by the CJEU in the Bestwater case, explicitly mentioning the “new public” criterion in the operative part of the order.

In both cases, the Court tried to find a balanced outcome by allowing the provision of links to copyrighted works as long as the links do not circumvent any access restriction established on the website to which they point. However, those cases didn’t directly address the key question of whether a link, even if it does not circumvent any access restriction, may amount to a communication to the public when the content linked to was posted without authorization. In other words, whether linking to freely available pirate content constitutes a primary infringement of the communication to the public right. And this is in essence what the Court must clarify now in GS Media.

In his Opinion on the case, Advocate General Wathelet suggests the CJEU to answer the question in the negative. According to the AG, a hyperlink to a work which is freely available on another website does not amount to an ‘act of communication’ under the Directive in the first place, “since the intervention of the operator of the website which posts the hyperlink, in this case GS Media, is not indispensable to the making available of the photographs in question to users.” That is, there would not be an act of communication to the public regardless of whether or not the works linked to were posted with the rights holders authorization.

The AG holds as well that in any event, the ‘new public’ criterion would not be applicable to that case, since it only applies where the rights holder authorised the initial communication. And furthermore, even if the Court would find that criterion applicable, the ‘new public’ requirement is not satisfied because the intervention of the link setter was not indispensable for the making the works available.

As to the question, also raised by the national court, of whether there is a communication to the public where a hyperlink greatly facilitates the finding of the work, the AG proposes to answer in the negative, noting that “it is not sufficient that the hyperlink facilitates or simplifies users’ access to the work in question.”

It remains to be seen if and to what extent the Court will follow AG’s advice. Some have expressed fears that if the CJEU ends up declaring that links to freely available pirated content are non-infringing, websites of the likes of The Pirate Bay which deliberately provide links to clearly infringing files would be condoned and left out of reach of copyright enforcement.

Arguably, though, the question is not whether rights holders must have some remedies against those blatantly pirate sites, but whether those remedies should be based on the idea that they are infringing the communication to the public right, that is, that they are engaging in primary infringement. Expanding the notion of communication to the public to make sure those sites fit in it would have dramatic consequences for the use of hyperlinks on the internet  – as the AG noted, “as a general rule, internet users are not aware and do not have the means to check whether the initial communication to the public of a protected work freely accessible on the internet was effected with or without the copyright holder’s consent.”

A more careful approach would be to deal with those sites and other bad actors under theories of secondary or accessory liability, which allow for better consideration of the elements that characterize their activity, such as facilitation, knowledge, intent, volume of works affected, contempt for copyrights and ultimately fault.

Secondary or accessory liability in the field copyright is not harmonized as of yet in the EU – though some proposals for harmonization have been put forward. It thus turns on national law. In this regard, it might be interesting to briefly look at the case of Spain, where some legislative measures have been taken to tackle the activity of websites aiming to foster infringement, while at the same time carefully leaving out neutral linking activities.

The Spanish approach

Before Svensson, courts in Spain were wrestling on whether websites providing catalogues of links to pirate content were themselves infringing the public communication right. Many courts – particularly in criminal cases but also in civil ones – found that they don’t . Those courts held that while the linking websites greatly facilitate access to the infringing content, such facilitation does not amount to an act of communication.

Having that case law in mind, a number of legislative measures were passed, which aimed to strengthen copyright enforcement against such websites. Those reforms neither amended the definition of the public communication right, nor sought to ensure that links constitute acts of “communication to the public,” – which after all is a harmonized concept in EU law.  Rather, they sought to allow the enforcement of copyright against those websites and similar bad faith business models even if it turns out that their activity can’t be considered a communication to the public – which would be the case if the CJEU follows the AG’s approach.

In particular, in 2014, a system of indirect liability was introduced for the first time in the Copyright Act (LPI). A new paragraph in art. 138 LPI holds liable those who knowingly induce an infringement; those who, knowing or having reason to know about the infringing conduct, cooperate with it; and those who, having a direct economic interest in the results of the infringement, have the capacity to control the infringer’s conduct. The provision expressly states that this will not affect the e-Commerce intermediary safe harbours, as long as their conditions are met.

The same 2014 reform modified the legal regime of the Second Section of the Intellectual Property Commission (aka Sinde-Wert Commission), an administrative enforcement body created in 2011, which limits its scope of action to information society service providers. The 2014 reform decided that Commission’s activity should focus on the big copyright infringers. Hence, in order to decide whether or not to initiate a case, the Commission will consider the audience share of the service in Spain, the number of apparently unauthorized works and performances which can be accessed from the service, and its business model. In addition, the relevant provision states that the Commission will act against providers that infringe copyright in the said way (thus considering their audience share, number of works, or business model) “by facilitating the description or the location of works and performances apparently offered without authorization, carrying out to that end an active and non neutral task, without limiting themselves to activities of mere technical intermediation. In particular, those who offer arranged and classified lists of links to those works and performances, regardless of whether the said links might have been initially provided by the recipients of the service.”[1]

In 2015, two relevant changes were made to the Criminal Code. Before the reform, the conduct for the basic copyright criminal offence (art. 270.1) consisted of reproducing, plagiarizing, distributing, or communicating to the public, wholly or in part, a protected subject matter without authorization (when carried out for profit and to the prejudice of a third party). The reform added the language “or in any other way economically exploiting” the protected work or performance. In addition, the “for profit” element is now the intent to obtain an economic benefit “directly or indirectly”.

On the other hand, in addition to this basic conduct, the reform of the Criminal Code added a specific offence (art. 270.2) which refers to “the one who, when providing information society services, with the aim of obtaining a direct or indirect economic benefit, and to the prejudice of a third party, facilitates in an active and non neutral way, without limiting himself to a merely technical processing, the access to, or the location on the internet of, works or performances subject to copyright without the authorization of the holders of the corresponding rights or their assignees, in particular by offering arranged and classified lists of links to the works and contents referred above, even if the said links had been initially provided by the recipients of their services.”

This is an autonomous offence, which does not require the conduct to fall under the notion of communication to the public. The preamble to the Law that introduces this new felony notes that it leaves out the case of “those who carry out activities of mere technical intermediation, such as, for instance, a neutral activity of a search engine, or those merely providing occasionally links to those contents.”

We will see how these reforms will play out in practice.  In any event, this legislative approach aims at ensuring that even if the CJEU finds that linking to freely available infringing content does not amount to a communication to the public, the activity of those bad-actor websites will give raise to administrative injunctions, secondary civil liability, and even criminal liability as the case may be.

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[1] The legislator envisioned that this activity would constitute in any event a violation of the “general exploitation right” which Spanish law confers to rights holders. Nonetheless, it could always be considered a form of secondary liability under the new wording of Art. 138.