Request for a preliminary ruling from the Hoge Raad der Nederlanden (Netherlands) lodged on 7 April 2015 — GS Media BV v Sanoma Media Netherlands BV and Others
Language of the case: Dutch
Hoge Raad der Nederlanden
Parties to the main proceedings
Applicant: GS Media BV
Defendants: Sanoma Media Netherlands BV, Playboy Enterprises International Inc., Britt Geertruida Dekke
1(a) If anyone other than the copyright holder refers by means of a hyperlink on a website controlled by him to a website which is managed by a third party and is accessible to the general internet public, on which the work has been made available without the consent of the rightholder, does that constitute a ‘communication to the public’ within the meaning of Article 3(1) of Directive 2001/29? 1
1(b) Does it make any difference if the work was also not previously communicated, with the rightholder’s consent, to the public in some other way?
1(c) Is it important whether the ‘hyperlinker’ is or ought to be aware of the lack of consent by the rightholder for the placement of the work on the third party’s website mentioned in 1(a) above and, as the case may be, of the fact that the work has also not previously been communicated, with the rightholder’s consent, to the public in some other way?
2(a) If the answer to question 1(a) is in the negative: in that case, is there, or could there be deemed to be, a communication to the public if the website to which the hyperlink refers, and thus the work, is indeed findable for the general internet public, but not easily so, with the result that the publication of the hyperlink greatly facilitates the finding of the work?
2(b) In answering question 2(a), is it important whether the ‘hyperlinker’ is or ought to be aware of the fact that the website to which the hyperlink refers is not easily findable by the general internet public?
3. Are there other circumstances which should be taken into account when answering the question whether there is deemed to be a communication to the public if, by means of a hyperlink, access is provided to a work which has not previously been communicated to the public with the consent of the rightholder?________________________1
Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society (OJ 201 L 167, p. 10).