The team is joined by Guest Kats Rosie Burbidge, Stephen Jones, Mathilde Pavis, and Eibhlin Vardy, and by InternKats Verónica Rodríguez Arguijo, Hayleigh Bosher, Tian Lu and Cecilia Sbrolli.

Monday, 20 November 2017

Athens Court of Appeal applies CJEU GS Media linking decision and interprets 'profit-making intention' restrictively

Linking after GS Media, available here
Last week, while I was attending the REDA [as Regulation and Enforcement in the Digital Age, not MEP Reda] 2017 Conference in Nicosia (Cyprus), I found out that after Sweden [herehere, and here], Germany [here, here, here, here, and here], the Czech Republic [here], and the UK [here] [have I missed something? Are you aware of other national courts’ decisions on linking? Please let me know!], also a Greek court has had the chance to apply the reasoning of the Court of Justice of the European Union (CJEU) in GS Media, C-160/15 [Katposts here].

The Greek decision is extremely interesting because it contains a rather narrow interpretation of what qualifies as profit-making intention. 

As I also discuss more at length here and here, when one reads the GS Media decision it is not self-evident whether the presence of a profit-making intention should be assessed in relation to the specific act of communication at hand, or the broader context in which such act is performed. Although both alternatives may be plausible, consideration of the context in which the relevant link is provided appears more in line with existing CJEU case law, both preceding and following GS Media

However the Athens Court of Appeal opted for the former as the correct interpretation of the profit-making intention of the defendant/link provider.

Katfriend, fellow blogger (iprights.gr), attorney and post-doc researcher Dr Theodoros Chíou (Dr. Theodoros Chíou & Partners, Intellectual Property and Internet Law Office), explains what happened.

Here's what Theodoros writes:

“A new episode on the pan-European saga of hyperlinking cases is added by the decision No 1909/2017 of the Athens Court of Appeal [a summary in English can be found here]. By applying the CJEU GS Media judgment for the first time in Greece, the court ruled on second instance in the livemovies.gr case and offered some insights on the determination of the profit-making character underlying the provision of relevant hyperlinks.

Background

The website www.livemovies.gr (no longer active) was an online inventory for, mainly, Greek TV series episodes, TV programmes and films. The website contained several hyperlinks (deep-links) that directed users to third-party websites and usually (but not always) towards rightholders’ websites or other official web locations (such as official YouTube channels), where the works were freely available for online streaming, without any technical or other restrictions (paywall or others).

The major Greek collecting society in the music sector (AEPI) made several attempts to conclude a licence for the communication to the public of musical works through the website. However, in response to that, the administrator of the website filed an action against AEPI, in order to, among others, have judicially recognized the absence of any licensing obligation for the website’s activity.

The Multi-Person Court of First Instance of Athens (Polimeles Protodikio Athinon, decision no 5249/2014) [already reported and commented on this blog] sided with the administrator’s request, and held that, on the basis of the Svensson decision [Katposts here], the mere provision of hyperlinks to freely available protected works does not constitute a new act of communication to the public (thus: no licence is needed and no copyright infringement is involved), and that is so irrespective of the lawful or unlawful character of the initial communication. 

Both the administrator of the website and AEPI appealed the first instance decision to the Athens Court of Appeal.

livemovies.gr when it was still active
The decision

The Court of Appeal confirmed the conclusion of the appealed decision (and rejected both appeals) and concluded that the posting of hyperlinks would not be an act of communication to the public. As a consequence, the administrator of the website did not had the obligation to obtain licensing and pay the relevant remuneration for such linking activity.

The Court rooted its decision within a different reasoning than the one used in the appealed decision, by making reference not only to CJEU decisions in Svensson and Bestwater [here] but also GS Media (the decisions in Filmspeler [Kartposts here] and Ziggo [Katposts here] had yet to be issued at the time when the Athens Court of Appeal's ruling was published).

The judgment was based on the following findings (the original order of argumentation is kept):

-       No primary liability detected: “As it has been proved, the plaintiff, as administrator of the website, had not stored on a server nor had provided the possibility for users visiting his website to watch audiovisual works that contained musical works […]. The user, after selecting the desired work from the website’s archive, was redirected through a hyperlink to a third-party website, where free access to the work was available.” 
-       The requirement of new publichas not been met: “Moreover, it was not the case of bringing new public to these third-party websites, but about free accessing of users [to the freely available targeted works], without technical or other restrictions.”  
-       No awareness of the unlawfulness of initial communication: As it has been proved, the plaintiff did not know and could not have known whether the third-party websites, to which the user was redirecting to […] had obtained a lawful licence from the respective authors and representative organisations for the transmission of such works
-       No profit-making purpose of hyperlinking:  But even in the very few cases where the websites, to which the user was redirected to through the use of hyperlinks, had not obtained a lawful licence, the plaintiff has not acted with profit-making intention, since it has been established neither any involvement of the plaintiff in these third-party websites nor reception of any profits generated from the unauthorised transmission of protected works.

The homepage of livemovies.gr today
Comment

A prima facie observation that should be underlined is the inversion of the GS Media assessment criteria. In fact, the court examined the knowledge criterion first and then the for-profit character underlying the provision of hyperlinks. However, according to the GS Media judgment, the pursuit of financial gain is the first determination that has to be made, before assessing the knowledge factor.

The most interesting part of the decision resides in the interpretation of the profit-making character. Indeed, the Court seems to ascertain the pursuit of financial gain in the context of hyperlinking in two cases: a) where the hyperlink provider is involved (under a scheme whatsoever) in the targeted transmission and b) where the hyperlink provider makes profit that derives from the unauthorized transmission of works per se.

According to this approach, a distinction should be made between, on the one hand, the profits made by the hyperlink provider that are connected to the (unauthorized) retransmission of targeted works and, on the other hand, the profits generated from the provision of hyperlinks as such, within the framework of the operation of the website. 

As a consequence, the criterion of the pursuit of financial gain by the linker, as introduced by the GS Media decision, should be satisfied only in the former case and not in the latter. 

This means, among others, that the mere lucrative character of a website that provides hyperlinks (e.g. because of ad revenues) would not amount to a pursuit of financial gain.

This is definitely a restrictive interpretation of the GS Media ruling, especially if one takes into account the circumstances of the case, where the main objective of the website was to provide hyperlinks, while several advertisements banners figured therein.”

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