Unconsented hyperlinking to copyrighted material is copyright infringement if for profit

download (30)On September 8, 2016, the Court of Justice of the European Union (CJEU) decided whether unconsented hyperlinking to copyrighted material is copyright infringement. It held that when that unconsented hyperlinking generates a profit, then it is is copyright infringement.

In 2011, GeenStijl published links to some pirated Playboy photos. Sanoma (Playboy publisher) brought an action at the Rechtbank Amsterdam (District Court, Amsterdam) for infringement of copyright: the court upheld the claims. On appeal, The Gerechtshof Amsterdam (Court of Appeal, Amsterdam) held that there was no copyright infringement. However, the publication was still unlawful because the posting of the hyperlinks encouraged the view of photographs illegally published, which – without those hyperlinks – would not have been easy to find. On subsequent appeal, the Dutch Supreme Court stayed its proceedings and referred (among other) the following questions to the CJEU for a preliminary ruling:

“If anyone other than the copyright holder refers by means of a hyperlink on a website controlled by him to a website which is managed by a third party and is accessible to the general internet public, on which the work has been made available without the consent of the rightholder, does that constitute a “communication to the public” within the meaning of Article 3(1) of the Copyright Directive (2001/29)”.

The Advocate General opined that the linking which directs to works protected by copyright that are freely accessible on another website cannot be classified as an “act of communication” within the meaning of Article 3(1), Copyright Directive, and it is therefore not “making available to the public” the pirated material. See here for more info.

The CJEU partially disagreed with its Advocate General.

According to the CJEU, the concept of “communication to the public” of Article 3(1) of Directive 2001/29 must be interpreted broadly to give the high level of protection to the authors determined by the directive and it should be evaluated differently considering whether or not the posting of hyperlinks is carried out for profit.

In order to establish whether the fact of posting, on a website, hyperlinks to protected works, which are freely available on another website without the consent of the copyright holder, constitutes a ‘communication to the public’ within the meaning of that provision, it is to be determined whether those links are provided without the pursuit of financial gain by a person who did not know or could not reasonably have known the illegal nature of the publication of those works on that other website or whether, on the contrary, those links are provided for such a purpose, a situation in which that knowledge must be presumed.

The CJEU explained that:

1) posting hyperlinks on a website to works freely available on another website (with our without owner’s consent) does not constitute a ‘communication to the public’ as covered by Article 3(1), Copyright Directive.

As soon as and as long as that work is freely available on the website to which the hyperlink allows access, it must be considered that, where the copyright holders of that work have consented to such a communication, they have included all internet users as the public”. In this case, the hyperlinking does not constitute an act of communication to “a new public”. Likewise, the hyperlinks to protected works freely available without the consent of the copyright holders cannot be excluded from the concept of “communication to the public

Automatically categorizing all posting of links to works published on other websites as “communication to the public” just because “the copyright holders of those works have not consented to that publication on the internet, would have highly restrictive consequences for freedom of expression” and would not constitute a good balance between freedom and public interest (on one hand) and the protection of intellectual property (on the other).

Furthermore, it may be difficult to ascertain “whether website to which those links are expected to lead, provides access to works which are protected and, if necessary, whether the copyright holders of those works have consented to their posting on the internet”.

The Court qualified the above by saying that  if the individual posting the links

knew or ought to have known that the hyperlink he posted provides access to a work illegally placed on the internet, for example owing to the fact that he was notified thereof by the copyright holders, it is necessary to consider that the provision of that link constitutes a ‘communication to the public’ within the meaning of Article 3(1) of Directive 2001/29.

The same applies in the event that the link allows website users  to circumvent the restrictions taken by the site where the protected work is posted in order to restrict the public’s access to its own subscribers.

2) however, when the posting of hyperlinks is carried out for profit there is the presumption that the posting of the hyperlinks to a work illegally placed on the internet constitutes a “communication to the public” within the meaning of Article 3(1), Copyright Directive.

If it is for profit, the person who posted the link must “carr[y] out the necessary checks to ensure that the work concerned is not illegally published on the website to which those hyperlinks lead”  and that  “it must be presumed that that posting has occurred with the full knowledge of the protected nature of that work and the possible lack of consent to publication on the internet by the copyright holder”.

The judgment  C‑160/15 GS Media BV v Sanoma Media Netherlands BV ECLI:EU:C:2016:644 is available at http://curia.europa.eu…