Art. 3 Abs. 1 Directive 2001/29 / EC of the European Parliament and of the Council of 22. More 2001 the harmonization of certain aspects of copyright and related rights in the information society must be interpreted, that to answer the question, whether the setting of hyperlinks to a website to works, which are freely accessible on another website without permission of the copyright holder, constitutes a 'public' within the meaning of that provision, is to be determined, whether the links non-profit by someone, did not know the unlawful publication of works on the other site, or could not reasonably know, were provided or if the links were rather provided for profit, in the latter case, this knowledge can be assumed.

JUDGMENT OF THE COURT (Second chamber)

8. September 2016(*)

"Template for a preliminary ruling - Copyright and related rights - Directive 2001/29 / EC - Information society - the harmonization of certain aspects of copyright and related rights - Art. 3 Abs. 1 - Communication to the public - Concept - Internet - hyperlinks to works, which are made available on another website without the rightholder's consent - not yet published by the rightholder works - Put these links for commercial purposes "

In Case C-160/15

REFERENCE for a preliminary ruling under Article. 267 AEUV, from the Hoge Raad der Nederlanden (Dutch Supreme Court) by decision of 3. April 2015, referred to the Court 7. April 2015, in the process

GS Media BV

against

Sanoma Media Netherlands BV,

Playboy Enterprises International Inc.,

Britt Dekker Geertruida

adopt

THE COURT (Second chamber)

under President of the Chamber M. Ilešič (Reporter), Judges C. Toader, Judge A. Rosas, Judges A. Prechal and the judge E. Jarašiūnas,

Advocate General: M. Wathelet,

Chancellor: M. Ferreira, principal Administrator,

regard to the written procedure and further to the hearing on 3. February 2016,

after considering the observations

- The GS Media BV, represented by R. Chavannes and D. Verhulst, Advocates,

– der Sanoma Media Netherlands BV, der Playboy Enterprises International Inc. and Britt Dekker Geertruida, represented by C. Alberdingk Thijm und C. de Vries, Advocates,

- The German Government, represented by T. Henze and D. Kuon as Agents,

- The French Government, represented by D. Segoin, D. Colas and G. de Bergues, acting as Agents,

- The Portuguese Government, represented by L. Inez Fernandes and T. Rendas as Agents,

- The Slovak Government, represented by B. Ricziová as Agents,

- The European Commission, represented by F. Wilman, T. Sharp and J. Samnadda as Agents,

after hearing the Opinion of the Advocate General at the sitting on 7. April 2016

following

Judgment

1 The preliminary ruling concerns the interpretation of Article. 3 Abs. 1 Directive 2001/29 / EC of the European Parliament and of the Council of 22. More 2001 the harmonization of certain aspects of copyright and related rights in the information society (ABl. 2001, The 167, S. 10, with corrigendum OJ. 2002, The 6, S. 71).

2 It was made in the context of a dispute between the GS Media BV on the one hand and the Sanoma Media Netherlands BV (below: Message), der Playboy Enterprises International Inc. and Mrs Britt Dekker Geertruida (hereinafter collectively: Sanoma you. a.) on the other side, in particular by setting electronic references (Hyperlinks) on the run by GS Media Website GeenStijl.nl (below: website GeenStijl) to other websites, the recorded access to the Playboy magazine photos of Mrs Dekker (below: at issue Photos) enabled.

Legal framework

3 Recitals 3, 4, 9, 10, 23 and 31 of Directive 2001/29 is it [called:

„(3) The proposed harmonization will help to implement the four freedoms of the internal market and relates to compliance with the fundamental principles of law, especially of property, including intellectual property, freedom of expression and the public interest.

(4) A harmonized legal framework on copyright and related rights will promote through increased legal certainty and while providing for a high level of protection of intellectual property substantial investment in creativity and innovation, including network infrastructure, thereby contributing to growth and increased competitiveness of European industry,de, both in the content and the information technology and more generally in wide range of industries and the cultural sector. …

…

(9) Any harmonization of copyright and related rights must take a high level of protection, as these rights are essential for creation. Their protection helps, the preservation and development of creativity in the interests of authors, performers, manufacturer, consumer, ensure of culture, industry and the general public. …

(10) If authors or performers are to continue their creative and artistic work, must receive an appropriate reward for the use of their works, which is also true for producers, so that they can finance the works. ... Only if the intellectual property rights are adequately protected, can an adequate remuneration of right holders and ensures a satisfactory returns on this investment.

…

(23) This policy of communication to the public of copyright should be further harmonized. This right should be understood in the broad sense, namely to the effect, that covering all communication to the public, at the place where, where the communication originates, not present. …

…

(31) An adequate law- and balance of interests between the different categories of rightholders, as well as between the different categories of rightholders and users of protected subject matter are secured. Rules adopted by Member States exceptions and limitations to rights must be reassessed in the light of the new electronic media. …“

4 Art. 3 of that directive:

„(1) The Member States shall provide, that the authors with the exclusive right, the wired or wireless public of their works, including the making public of their works in such a way, that they are accessible to the public at times and places of their choice, to authorize or prohibit.

…

(3) In paragraphs 1 and 2 Rights referred to are not exhausted with those referred to in this article acts of the public or making available to the public. "

5 Art. 5 Abs. 3 and 5 the Directive provides:

„(3) Die Mitgliedstaaten können in den folgenden Fällen Ausnahmen oder Beschränkungen in Bezug auf die in den Artikeln 2 and 3 provide for the rights provided:

…

c) für die Vervielfältigung durch die Presse, die öffentliche Wiedergabe oder die Zugänglichmachung von veröffentlichten Artikeln zu Tagesfragen wirtschaftlicher, politischer oder religiöser Natur oder von gesendeten Werken oder sonstigen Schutzgegenständen dieser Art, sofern eine solche Nutzung nicht ausdrücklich vorbehalten ist und sofern die Quelle, einschließlich des Namens des Urhebers, angegeben wird, oder die Nutzung von Werken oder sonstigen Schutzgegenständen in Verbindung mit der Berichterstattung über Tagesereignisse, soweit es der Informationszweck rechtfertigt und sofern – außer in Fällen, in denen sich dies als unmöglich erweist – die Quelle, einschließlich des Namens des Urhebers, angegeben wird;

…

(5) In paragraphs 1, 2, 3 and 4 exceptions and restrictions shall only be applied in certain special cases, in which the normal exploitation of the work or other subject-matter is not prejudice the legitimate interests of the right holder are not unduly infringed. "

The main proceedings and the questions referred

6 At the 13. and 14. October 2011 erstellte der Fotograf C. Hermès im Auftrag von Sanoma, der Verlegerin der Zeitschrift Playboy, die in Rede stehenden Fotos, die in der Dezemberausgabe 2011 dieser Zeitschrift erscheinen sollten. Herr Hermès erteilte Sanoma in diesem Zusammenhang exklusiv die Erlaubnis, to publish the photos there. It authorized Sanoma also to enforce its copyright claims and powers.

7 GS Media operates the site GeenStijl, the, as it says, "News, Scandal revelations and journalistic research with loose threads and pleasantly crazy nonsense "contains and daily by more than 230 000 is viewed visitors, making it one of the ten most visited news websites in the Netherlands.

8 At the 26. October 2011 received the editors of GeenStijl by one person, which used an alias, a message with a link to an electronic file on the Australian website Filefactory.com (below: Website Filefactory), the data storage used. This electronic file containing the disputed Photos.

9 On the same day Sanoma called the parent company of GS Media on, to prevent the spread of the subject material on the site GeenStijl.

10 At the 27. October 2011 was under the heading "...! Naked pictures of [Mrs] Dekker "on the website GeenStijl published an article about these photos of Mrs Dekker, the side containing a section of the at issue Photos and ended with the following text: "Now therefore, the link to the pictures, to which you have been waiting for. "By means of a click on a hyperlink, users were redirected to the website FileFactory, on the other hyperlink enabled them, downloading eleven files with one of these photos.

11 On the same day Sanoma sent to the parent company of GS Media email, where this was asked, to confirm, that the hyperlink has been removed to those at issue Photos from the site GeenStijl. GS Media did not come to this call.

12 By contrast, the disputed photos were removed on the website FileFactory prompted by Sanoma.

13 By letter of 7. November 2011 demanded a lawyer, Sanoma u. a. took, GS Media on, the article from 27. October 2011 including hyperlinks, to remove the photos contained therein and published on the same side of this website comments of Internet users from the website GeenStijl.

14 On the same day, a report on the dispute between GS Media and Sanoma has u on the website GeenStijl. a. published on the photos at issue. This ended with the following sentence: „Update: [Dekker]-not seen nude pictures? You are HIERRR ". This announcement was again provided with a hyperlink, which allowed access to the website Imageshack.us, were on the one or to see more of the photos in question. Also the owner of this website, however, was then asked by Sanoma, to remove the photos.

15 A third report, with "Bye Bye, was adieu Playboy overwritten "and in turn contained a link to the picture in question, appeared on 17. November 2011 on the website GeenStijl. In the forum of this website its Internet users put more links to other websites, auf denen die in Rede stehenden Fotos zu sehen waren.

16 Im Dezember 2011 wurden die in Rede stehenden Fotos in der Zeitschrift Playboy veröffentlicht.

17 Sanoma you. a. erhoben Klage bei der Rechtbank Amsterdam (Bezirksgericht Amsterdam, Niederlande), die sie u. a. damit begründeten, dass GS Media durch das Setzen der Hyperlinks und das Einstellen eines Ausschnitts eines der in Rede stehenden Fotos auf der Website GeenStijl gegen das Urheberrecht von Herrn Hermès verstoßen und Sanoma u. a. in ihren Rechten verletzt habe. Die Rechtbank Amsterdam (Bezirksgericht Amsterdam) upheld the action largely.

18 The Amsterdam Court of Appeal (Amsterdam Court of Appeal, Niederlande) annulled the decision on the grounds, that GS Media have not violated by the setting of the hyperlinks on the website GeenStijl copyright by Mr Hermès, since the disputed photos were published by the setting on the site FileFactory earlier. However, GS Media have by setting these hyperlinks Sanoma u. a. infringes the rights, as visitors to this site were asked, of the photos in question, which had been illegally placed on the website FileFactory, to take note. Without these links these photos would not have been easy to find. Moreover, the Gerechtshof Amsterdam (Amsterdam Court of Appeal) found, that GS Media had intervened with the release of a section of the one at issue in photos on the website GeenStijl copyright by Mr Hermès.

19 GS Media appealed against that judgment an appeal before the Hoge Raad der Nederlanden (Dutch Supreme Court) on.

20 Sanoma you. a. appealed connection cassation, which authorizes them and citing. a. to the judgment 13. February 2014, Svensson u. a. (C‑466/12, I:C:2014:76), claims made, that the fact, that'll Internet users provided a hyperlink to a website, on a work had been made without the consent of the copyright holder, communication to the public representative. In addition, access to those at issue photos on the website FileFactory was protected by restrictive measures referred to above, it was, which could circumvent Internet users by means of the intervention of GS Media and their website GeenStijl, so that these photos were made available to a wider audience than the audience, that would have normally had access to the photos on the website FileFactory.

21 During the audit this connection cassation, the national court, that neither the judgment of 13. February 2014, Svensson u. a. (C‑466/12, I:C:2014:76), nor of the order of 21. October 2014, BestWater (C‑348/13, not published, I:C:2014:2315), could be derived with reasonable assurance, whether a "communication to the public" for the purposes, if the work before actually, but had been released without the consent of the copyright holder.

22 On the one hand lies this case-law based on the idea, that had to be examined, whether will be reached by engaging relevant audiences, that was not covered by the public, had given his permission for the rightholder, which is consistent with its exclusive right, to exploit the work. On the other hand will, if a business already on the Internet is searchable by the general public, actually be achieved by setting a hyperlink to this reference is not a new audience. Moreover, it should be taken into account, that could be found on the Internet a lot of works, which had been published without the consent of the rightholder. For the operator of a website, the intention, to create a hyperlink to a reference of a work, should not it always be easy, to consider, if the right holder had consented to the previous setting of this work.

23 The referring court notes moreover, that the cassation cross-appeal, the question of the conditions "restrictive measures" within the meaning of the judgment of 13. February 2014, Svensson u. a. (C‑466/12, I:C:2014:76), raises. It points out in this, that the disputed Photos, before GS Media have set the hyperlink to the site GeenStijl, not untraceable on the Internet, but were not easy to find, so that setting this links have facilitated their website to access these photos to a great extent.

24 In those circumstances, the Hoge Raad der Nederlanden (Dutch Supreme Court) stayed the proceedings and referred the following questions to the Court:

1. a) Is there a "public 'within the meaning of Article. 3 Abs. 1 of Directive 2001/29 ago, when a person other than the copyright holder via a hyperlink on a Web site operated by it to a third party operated, refers to the general Internet audience accessible website, on which the work has been made available without the consent of the rightholder?

b) Does it make a difference, whether the work was also otherwise not previously communicated to the public with the consent of the rightholder?

c) Is it relevant, whether the "hyperlinker" of the lack of authorization of the rightholder for setting the work on the question in 1 a website called the Third and possibly the fact, that the work was also otherwise not previously communicated to the public with the consent of the rightholder, white or need to know?

2. a) If question 1 a is in the negative: If in this case, however, the public reproduction ago, or such a present, when the website, on the hyperlink, and so that the work, is discoverable by the general Internet public, though not easily, so that setting of the hyperlink makes finding the work to a great extent?

b) Is it when answering question 2 a relevant, whether the "hyperlinker" the fact knows or must know, that the site, on the hyperlink, is not easy to find for the general Internet audience?

3. Are there any other circumstances, which is to contribute to answering the question statements, whether communication to the public exists, if access via a hyperlink is procured on a work, that was not previously communicated to the public with the consent of the rightholder?

The questions

25 By its three questions, which should be considered together, asks the national court, whether and under what conditions any setting of a hyperlink on a Web site to works, which are freely accessible on another website without permission of the copyright holder, a 'public' within the meaning of Article. 3 Abs. 1 of Directive 2001/29 represents.

26 The referring court wishes to know the extent particular, if it is significantly, that the disputed works have not been published in any other way with this permission rightholder, that the provision of hyperlinks makes finding these works to a great extent, because the site, where they are accessible to the entire Internet audience, is not easy to find, and that that, putting these links, these facts and the fact, that the right holder had the publication of works not allowed on this website, knew or should have known.

27 Not Art. 3 Abs. 1 of Directive 2001/29 must ensure that Member States, that the authors with the exclusive right, the wired or wireless public of their works, including the making public of their works in such a way, that they are members of the public at a place and at a time individually chosen, to authorize or prohibit.

28 Thus the authors have a right under that provision of a preventive nature, that allows them, at users of their works prior to the public, these users wishing to perform, turn, in fact, to prohibit this (vgl. to that effect from the 15. March 2012, SCF, C‑135/10, I:C:2012:140, Rn. 75, and from 31. More 2016, Reha Training, C‑117/15, I:C:2016:379, Rn. 30).

29 From Art. 3 Abs. 1 of Directive 2001/29 the term 'public' is not explained, are the meaning and scope of this concept with regard to the objectives, pursued by this Directive, and the relationship, in the provision to be interpreted fits the, to determine (vgl. to that effect from the 7. December 2006, SGAE, C‑306/05, I:C:2006:764, Rn. 33 and 34, and from 4. October 2011, Football Association Premier League u. a., C-403/08 and C-429/08, I:C:2011:631, Rn. 184 and 185).

30 It is apparent from the ninth and tenth recitals of Directive 2001/29, that their main objective is, to achieve a high level of protection of copyright and this order to give the opportunity, u for the use of their works. a. to obtain an adequate remuneration for public communication. Therefore, the term must be understood "the public" far, as also expressly set out the 23. apparent recital of this Directive (vgl. to that effect from the 4. October 2011, Football Association Premier League u. a., C-403/08 and C-429/08, I:C:2011:631, Rn. 186, and from 7. March 2013, ITV Broadcasting u. a., C‑607/11, I:C:2013:147, Rn. 20).

31 At the same goes from recitals 3 and 31 of Directive 2001/29 forth, that the harmonization brought by the directive in particular in the context of electronic media a fair balance between the interests of copyright holders and related rights in the protection of their kind by. 17 Abs. 2 the Charter of Fundamental Rights of the European Union (below: charter) guaranteed property right on the one hand the intellectual and protecting the interests and rights of users of protected subject matter, particular group founded by art. 11 Charter-guaranteed freedom of expression and information, and the public interest should also assure.

32 Thus, the Court has already held, that the term 'public' combines two cumulative Features, namely an "act of reproduction" of a work and its "public" Play (Judgments 13. February 2014, Svensson u. a., C‑466/12, I:C:2014:76, Rn. 16, from 19. November 2015, SBS Belgium, C‑325/14, I:C:2015:764, Rn. 15, and from 31. More 2016, Reha Training, C‑117/15, I:C:2016:379, Rn. 37).

33 The Court also found, that the term 'public' requires an individual assessment (vgl. Judgment of 15. March 2012, Phonographic Performance [Ireland], C‑162/10, I:C:2012:141, Rn. 29 and the case-law cited, in reference to the term 'public' within the meaning of Article. 8 Abs. 2 Directive 2006/115 / EC of the European Parliament and of the Council of 12. December 2006 on rental right and lending right and on certain rights related to copyright in the field of intellectual property [ABl. 2006, The 376, S. 28], the same in this Directive significance as defined in Directive 2001/29 [vgl. to that effect from 31. More 2016, Reha Training, C‑117/15, I:C:2016:379, Rn. 33]).

34 As part of such assessment, a number of other factors into account, the dependent and intertwined are. Since these criteria in each individual case may be in a very unequal manner, they are individually and apply in their interaction with the other criteria (Judgments 15. March 2012, SCF, C‑135/10, I:C:2012:140, Rn. 79, from 15. March 2012, Phonographic Performance [Ireland], C‑162/10, I:C:2012:141, Rn. 30, and from 31. More 2016, Reha Training, C‑117/15, I:C:2016:379, Rn. 35).

35 Under these criteria, the Court has highlighted the central role of the user and the intent of his actions as First. This user accepts namely before a reproduction, if he acted in full knowledge of the consequences of his behavior, to provide its customers with access to a protected work, in particular then, if the customer could in principle do not receive the broadcast work without such intervention (vgl. to that effect from the 15. March 2012, SCF, C‑135/10, I:C:2012:140, Rn. 82 and the case-law cited, and from 15. March 2012, Phonographic Performance [Ireland], C‑162/10, I:C:2012:141, Rn. 31).

36 Second, he has found, that "public" concept, an indeterminate number of potential beneficiaries and means must also consist of a good many people (vgl. to that effect from the 15. March 2012, SCF, C‑135/10, I:C:2012:140, Rn. 84 and the case-law cited, and from 15. March 2012, Phonographic Performance [Ireland], C‑162/10, I:C:2012:141, Rn. 33).

37 Moreover, it is according to the case law of the Court for classification as 'public' required, that a protected work using a technological process, which differs from the previously used, or, otherwise, is reproduced for a new audience, d. h. for an audience, had the owner of the copyright is not thought of, as they allowed the initial communication to the public (Judgment of 13. February 2014, Svensson u. a., C‑466/12, I:C:2014:76, Rn. 24, and Decision of 21. October 2014, BestWater International, C‑348/13, not published, I:C:2014:2315, Rn. 14 and the case-law cited).

38 Third, the Court held, that it is not negligible;, whether the public within the meaning of Article. 3 Abs. 1 of Directive 2001/29 Acquisition purposes (vgl. to that effect from the 4. October 2011, Football Association Premier League u. a., C-403/08 and C-429/08, I:C:2011:631, Rn. 204, from 15. March 2012, SCF, C‑135/10, I:C:2012:140, Rn. 88, and from 15. March 2012, Phonographic Performance [Ireland], C‑162/10, I:C:2012:141, Rn. 36).

39 Based on these criteria in particular should be checked, whether in a case such as the main proceedings, setting a hyperlink to a website to works, which are freely accessible on another website without permission of the copyright owner, a 'public' within the meaning of Article. 3 Abs. 1 of Directive 2001/29 represents.

40 In that regard, that the Court in its judgment of 13. February 2014, Svensson u. a. (C‑466/12, I:C:2014:76), Art. 3 Abs. 1 of Directive 2001/29 has interpreted, that the setting of hyperlinks to a website works, which are freely accessible on another website, does not constitute "public 'within the meaning of that provision. The same interpretation was also in the order of 21. October 2014, BestWater International (C‑348/13, not published, I:C:2014:2315), made for such a link using the framing technique.

41 From the reasons for those decisions, however, it is apparent, that the Court is wanted express only to set a hyperlink to works, which had been made freely available with the permission of the right holder on another website. Because in those decisions, the Court denied the existence of a communication to the public, therefore,, because the reproduction in question was not carried out for a new audience.

42 In this context, the Court stated, that such a hyperlink, he and the site, to which he refers, according to the same technical process, namely the Internet, access to the protected work, must be directed to a new audience. This is not the case, especially since the work is freely available to all Internet users already on another website with the permission of the copyright holder, can not the act in question as 'public' within the meaning of Article. 3 Abs. 1 of Directive 2001/29 be classified. Because the extent of this work on the site, can be accessed by the hyperlink, is freely accessible, is assumed, that the owner of the copyright, as they have this play allowed, have thought of all Internet users and audiences (vgl. to that effect from 13. February 2014, Svensson u. a., C‑466/12, I:C:2014:76, Rn. 24 to 28, and the order of 21. October 2014, BestWater International, C‑348/13, not published, I:C:2014:2315, Rn. 15, 16 and 18).

43 Therefore, neither the judgment of 13. February 2014, Svensson u. a. (C‑466/12, I:C:2014:76), nor of the order of 21. October 2014, BestWater International (C‑348/13, not published, I:C:2014:2315), be derived, that the setting of hyperlinks to a website to works, which have been made freely available on another website, but without the need existed permission of the copyright holder, generally not covered by the term 'public' within the meaning of Article. 3 Abs. 1 of Directive 2001/29 falls. These decisions confirm rather the importance of such a permit in light of this provision, which provides just, that any act of the public of a work must be authorized by the copyright owner.

44 GS Media, the German, Portuguese and Slovak Governments and the European Commission argue, it meant a considerable restriction of freedom of expression and freedom of information and the right balance, the Directive 2001/29 should on the other hand produce between these freedoms and the public interest on the one hand and the interests of copyright holders to the effective protection of their intellectual property, not correspond to, if each set of such links to works, published on other websites, would be classified as "public ', when the copyright holders had this internet publication is allowed in these works.

45 In that regard, that the Internet for by Article. 11 the Charter guaranteed freedom of expression and information is actually of particular importance and contribute that hyperlinks to its proper functioning and to exchange views and information in this network, which is characterized by the availability of immense amounts of information.

46 Moreover, it can be particular for individuals, the links those want to put, prove difficult, to check, whether the site, to the to these links, give access to works, and optionally, if the copyright holders have allowed in these works whose publication on the Internet. This is a fortiori difficult to determine, when sub-licenses have been issued for these rights. Further, the content of a website, to which a hyperlink is access, be changed after the placement of the links under recording of protected works, without that one, who created the link, which must be necessary aware.

47 For the purpose of the individual assessment of the existence of a "communication to the public 'within the meaning of Article. 3 Abs. 1 of Directive 2001/29 must therefore, when setting a hyperlink may be made at another site freely accessible work of someone, the case does not pursue profit, be considered, that the person does not know and can not reasonably know, that this work has been published on the Internet without permission of the copyright holder.

48 If thereby making available in such cases, that the work of public, that it provides to other internet users direct access to him, (vgl. to that effect from 13. February 2014, Svensson u. a., C‑466/12, I:C:2014:76, Rn. 18 to 23), it is not generally in full knowledge of the consequences of his actions, to provide customers with access to a law published in the Internet business. Moreover, could, if the work in question was already available with unrestricted access on the Internet on the website, to which the hyperlink is access, basically already access the entire Internet audience it even without this action.

49 If, however, proved, that the person knew or should have known, that set by him hyperlink access to unauthorized published on the internet business gives - because he has been provided with examples of the copyright owner on -, so is providing this link as a "public 'within the meaning of Article. 3 Abs. 1 of Directive 2001/29 consider.

50 The same is true, if it enables the link to users of him offer under site, to circumvent restrictive measures, the on the protected work containing site were taken, to limit public access solely to its subscribers, since it then is a deliberate intervention in the placement of such links, without the users could not access the popular works (vgl. by analogy 13. February 2014, Svensson u. a., C‑466/12, I:C:2014:76, Rn. 27 and 31).

51 Incidentally, if hyperlinks are set for profit, from that, who set them, to be expected, that it makes the necessary checks, to make sure, that the covered work on the site, cause of the hyperlinks, has not been published without authorization, it is suspected that, that was carried out such a place hyperlinks in full knowledge of the snugness of the work and the possible lack of permission from the copyright owner to publish it on the Internet. In such circumstances, therefore,, provided that such rebuttable presumption can not be invalidated, the plot, which is to set a hyperlink to a illegally published in Internet business, a 'public' within the meaning of Article. 3 Abs. 1 of Directive 2001/29 but.

52 However, the absence of a new audience not "public" within the meaning of that provision in the top of the Rn. 40 to 42 present case discussed, in the works, which give the hyperlinks access, are freely accessible on another site with permission of the rightholder.

53 Such an interpretation of Article. 3 Abs. 1 of Directive 2001/29 provides that intended by the directive certainly increased level of protection of copyright. According to this interpretation, and in the type of. 5 Abs. 3 this Directive limits set can copyright holder namely proceed not only against the original publication of their work on a site, but also against any person, which sets a hyperlink to an unauthorized published on this website work for commercial purposes, as well as against persons, the circumstances referred to in the marginals. 49 and 50 the conditions set out above produce set non-profit purposes such links. It should be noted namely, that this holder under all circumstances be free, to inform such persons about the unlawful publication of their works on the Internet and to combat this, if you refuse, remove this link, without relying on one of the exceptions of this kind. 5 Abs. 3 could invoke.

54 As regards the case in the main proceedings, is certain, that GS Media website GeenStijl operates and that it has provided the links to the files with those at issue photos on the website for commercial purposes FileFactory. Moreover, it is, that Sanoma had the publication of these photos on the Internet does not allow. Moreover, the case of its representation in the order for reference appears to behave after so, that GS Media that fact was aware of, and therefore the presumption could not refute, that the setting of the links in full knowledge of the illegality of such publication. Under these circumstances, GS Media has obviously by placing these links - subject to consideration by the national court review - a "public 'within the meaning of Article. 3 Abs. 1 of Directive 2001/29 made, so that the other submissions raised by the national court circumstances, die in Rn. 26 are shown of this judgment, need not be tested.

55 It follows that the answer to the questions, dass Art. 3 Abs. 1 of Directive 2001/29 must be interpreted, that to answer the question, whether the setting of hyperlinks to a website to works, which are freely accessible on another website without permission of the copyright holder, constitutes a 'public' within the meaning of that provision, is to be determined, whether the links non-profit by someone, did not know the unlawful publication of works on the other site, or could not reasonably know, were provided or if the links were rather provided for profit, in the latter case, this knowledge can be assumed.

Costs

56 The parties to the main proceedings, a step in the action pending before the national court; the decision on costs is a matter for that court. The costs incurred by the other party for submitting observations to the Court, are not recoverable.

On those grounds, the Court (Second chamber) hereby:

Art. 3 Abs. 1 Directive 2001/29 / EC of the European Parliament and of the Council of 22. More 2001 the harmonization of certain aspects of copyright and related rights in the information society must be interpreted, that to answer the question, whether the setting of hyperlinks to a website to works, which are freely accessible on another website without permission of the copyright holder, constitutes a 'public' within the meaning of that provision, is to be determined, whether the links non-profit by someone, did not know the unlawful publication of works on the other site, or could not reasonably know, were provided or if the links were rather provided for profit, in the latter case, this knowledge can be assumed.