Linking to pirated content that is already available to the public can not be seen as copyright infringement under the European Copyright Directive. This is the advice Advocate General Melchior Wathelet has sent to the EU Court of Justice, in what may turn out to be a landmark case.

One of the key roles of the EU’s Court of Justice is to interpret European law to ensure that it’s applied in the same manner across all member states.

The Court is also called upon by national courts to clarify finer points of EU law to progress local cases with Europe-wide implications.

In recent years the Court was called upon to rule on several cases related to hyperlinking, in an effort to established whether links to other websites can be seen as copyright infringement.

Previously, it ruled that links to copyrighted works are not infringing if the copyright holder published them in public, and the same is true for embedding copyrighted videos.

But what if a link points to content that is not authorized by the copyright holder? Would this still be allowed? According to EU Advocate General Melchior Wathelet, it is.

In an advisory opinion to the EU Court of Justice, which will issue a final ruling later, the Advocate General reviewed a dispute between the Dutch weblog GeenStijl.nl and Playboy.

In October 2011, GeenStijl.nl published a post linking to leaked Playboy photos, which were hosted on the file-hosting service FileFactory.

Playboy publisher Sanoma successfully requested the removal of the photos at the hosting service, but in response GeenStijl continued to link to other public sources where they were still available.

The Dutch Court asked the EU Court of Justice to rule whether these links can be seen as a ‘communication to the public’ under Article 3(1) of the Copyright Directive of the Copyright Directive, and whether they facilitate copyright infringement.

In his advice today the Advocate General acknowledges that the hyperlinks facilitate the discovery of the copyrighted works, and make them more easily available. However, this isn’t copyright infringement.

“…hyperlinks which lead, even directly, to protected works are not ‘making them available’ to the public when they are already freely accessible on another website, and only serve to facilitate their discovery,” the EU Court of Justice’s writes, commenting on the advice.

The Advocate General argues that “linking” is not the same as making the content available, which would apply to the original uploader. This means that GeenStijl’s actions can not be characterized as copyright infringement.

“The actual act of ‘making available’ is the action of the person who effected the initial communication. Consequently, hyperlinks which are placed on a website and which link to protected works that are freely accessible on another site cannot be classified as an ‘act of communication’ within the meaning of the Directive.”

“In fact, the intervention of the owner of the site which places the hyperlink, in this case GS Media, is not indispensable to the photos in question being made available to internet users, including those who visit GeenStijl’s website,” the Court clarifies.

The advice is a setup for a landmark ruling. However, the Court stresses that the advice only applies to this particular case.

Technically, most torrent sites including The Pirate Bay, mostly link to material that’s already available elsewhere. However, in these cases the general purpose of the site may also be taken into account.

That said, the advice is good news for news sites, bloggers and the general public, as incidentally linking to relevant copyrighted material should be allowed in most cases.

The Advocate General’s advice is not binding, but the European Court of Justice often uses such advice as the basis of its rulings. The final verdict is expected to be released later this year.