Websites that link to copyright-infringing material but have no direct content can still be in breach of copyright, the advocate general to the Court of Justice of the European Union has ruled. 

In an opinion handed down last week advocate general Maciej Szpunar said that by making it possible to find copyright-infringing material websites are 'communicating' to the public.

He added that copyright owners could also get internet service providers to block access to the sites, provided certain conditions are met. Szpunar said the site’s operator must have knowledge of the infringement.

The CJEU is not legally required to follow the advocate general’s opinion but agrees with their ruling in around 80% of cases.

The case, Stichting Brein v Ziggo BV XS4ALL Internet BV, centred on the file-sharing website The Pirate Bay – though the Sweden-based platform was not a party in the dispute.

Stichting Brein, a Netherlands anti-piracy organisation, brought the case against two of the country’s internet service providers because it wants them to block access to the site.

The Hoge Raad der Nederlanden (Netherlands Supreme Court) asked the CJEU whether the search engine-like technology used by websites such as The Pirate Bay, linking to torrent files rather than the work itself, constitutes a communication to the public. Its questions were based on article 3 (1) of the EU’s InfoSoc Directive.

Szpunar said operators of those kind of websites are communicating to the public provided they are aware of the fact that the works are made available on the network without copyright-owners’ consent and if they do not take action in order to make access impossible.

The Pirate Bay is one of the best known websites for file-sharing and has changed its domain names several times to avoid being shut down.

Its founders have also spent time in prison for criminal copyright offences.