GS Media and its implications for the construction of the right of communication to the public within EU copyright architecture

Abstract

In its 2016 decision in GS Media, C-160/15 the Court of Justice of the European Union (CJEU) sought to clarify under what conditions the provision of a link to a work protected by copyright made available on a third-party website (where it is freely accessible) without a licence from the relevant rightholder falls within the scope of the right of communication to the public within Article 3(1) of the InfoSoc Directive. In its decision the CJEU held that whether linking to unlicensed content falls within or outside the scope of Article 3(1) of the InfoSoc Directive depends – crucially – on whether the link provider has a profit-making intention or knowledge of the unlicensed character of the work linked to. This article assesses the implications of the GS Media decision in respect of linking, and – more generally – the construction of the right of communication to the public. The main conclusion is that GS Media imposes a re-consideration of what amounts to an act of communication to the public. Yet, the forthcoming CJEU decisions in pending references for a preliminary ruling (Filmspeler, C-527/15, and Ziggo, C-601/15) might lead to a relaxation of the concept of 'indispensable intervention', thus broadening the notion of who makes an act of communication to the public. Ultimately the discussion undertaken in this contribution suggests that the concept of ‘communication to the public’ has been undergoing an evolution. The next frontier for Article 3(1) of the InfoSoc Directive appears to be not just a determination of what amounts to an act of communication to the public, but also who makes an act of communication to the public. The latter in particular is the next question for the CJEU to tackle, and also poses significant – and not entirely worked out – challenges to EU policy- and law-making.