One of the more controversial issues in GS Media was the focus by the Court of Justice of the European Union (CJEU) on the state of knowledge of the intervening party required in order to establish that there was a communication to the public.
First, the CJEU held that posting a hyperlink to a work which is freely available but without the right holder’s consent is an act of communication, provided the poster knew or should reasonably have known that the original communication was unauthorised.
Second, the CJEU held that in circumstances where the link is posted for financial gain, such knowledge is to be presumed. This presumption in particular has been viewed as vague and potentially very onerous.
Now that more than a year has passed since the decision, a number of national courts have been asked to apply GS Media. What have they made of the knowledge requirements set out by the CJEU?
This post is an introduction to an article that first appeared on World Intellectual Property Review.