The result? Quite ‘interesting’, as Katfriend Juraj Vivoda (Marek & Partners) explains.
As for the application of the GS Media test, the Court referred to paragraphs 47 to 49 of the judgment to conclude that where embedded links are provided to works made available on another website without the authorization of the relevant rightholders, it must be first established whether such embedding was carried out with the intention to make a profit. The Court inferred from GS Media that where embedded links are not provided for profit, it must be presumed that the website operator did not know and could not have known that the initial communication was unlawful. In contrast - the Court noted - where links are provided for profit, the knowledge of illegality of initial communication must be presumed.
The Court held that where it can be established that the website operator knew or could have known that the hyperlinks point to works illegally uploaded on the internet, for example on the basis of the fact that the operator has been notified of this fact by the relevant rightholders, it must be concluded that the provision of such hyperlinks constitutes an act of ‘communication to public’ within the meaning of Article 3(1) of the InfoSoc Directive.