Hyperlinking to an illegal source is an infringement of copyright
Hyperlinking to illegal sources can be an infringement of copyright, especially if it is done for profit. Anyone who offers hyperlinks will have to be more careful after a recent decision by the CJEU.
Deviating from the opinion of its Advocate General [see earlier blog], the CJEU has decided that hyperlinking to an illegal source is an infringement of copyright:
“where it is established that […] a person 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”.
In its Svensson judgment (C‑466/12, EU:C:2014:76), the Court took the same provision of the Copyright Directive 2001/29 as meaning that posting hyperlinks on a website to works freely available on another website does not constitute a ‘communication to the public’ as covered by that provision. That interpretation was also adopted in the BestWater court order (C‑348/13, EU:C:2014:2315) about such links using the technique known as ‘framing’. It was unclear what the situation was regarding hyperlinks to illegal sources. The Court now clarifies:
“However, it follows from the reasoning of those decisions that, by them, the Court intended to refer only to the posting of hyperlinks to works which have been made freely available on another website with the consent of the rightholder, the Court having concluded that there was no communication to the public on the ground that the act of communication in question was not made to a new public”.
The Court does realise “that the internet is in fact of particular importance to freedom of expression and of information, safeguarded by Article 11 of the Charter, and that hyperlinks contribute to its sound operation as well as to the exchange of opinions and information in that network characterised by the availability of immense amounts of information”.
“Furthermore, it may be difficult, in particular for individuals who wish to post such links, 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. Such ascertaining is all the more difficult where those rights have been the subject of sub-licenses. Moreover, the content of a website to which a hyperlink enables access may be changed after the creation of that link, including the protected works, without the person who created that link necessarily being aware of it”.
The Court stresses the fact that there is a need for an “individualised assessment of the existence of a ‘communication to the public’”. When the posting of a hyperlink to a work freely available on another website is carried out by a person who, in so doing, does not pursue a profit, it is necessary to take account of the fact that that person does not know and cannot reasonably know, that that work had been published on the internet without the consent of the copyright holder.
“Indeed, such a person, by making that work available to the public by providing other internet users with direct access to it […] does not, as a general rule, intervene in full knowledge of the consequences of his conduct in order to give customers access to a work illegally posted on the internet”.
Apparently the fact that someone does not “intervene in full knowledge of the consequences of his conduct” is decisive for whether there is a communication to the public or not. The Court continues to rule that if there is a profit-making purpose, there is a rebuttable presumption of knowledge on the part of the entity that provides the hyperlink:
“Furthermore, when the posting of hyperlinks is carried out for profit, it can be expected that the person who posted such a link carries out the necessary checks to ensure that the work concerned is not illegally published on the website to which those hyperlinks lead, so 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. In such circumstances, and in so far as that rebuttable presumption is not rebutted, the act of posting a hyperlink to a work which was illegally placed on the internet constitutes a ‘communication to the public’”.
The consequence of this decision is that entities that engage in large-scale hyperlinking to obviously illegal sources can no longer hide behind the fact that they ‘merely’ provide hyperlinks and are in no way responsible or can be held accountable for the infringement of copyright and the harm that it brings.
In the case at hand, the website Geen Stijl had full knowledge of the illegal character of the leaked nude pictures of celebrity Britt Dekker and tried to get as much attention and traffic to the hyperlink in question.
It is also important to note that whenever the illegal sources contain important news information hyperlinking to such sources by (for profit) news media would be allowed, because the fundamental right of freedom of information would then prevail. As discussed in an earlier blog, “courts need to examine whether, ‘in the specific case, the enforcement of an intellectual property right conflicts with another fundamental right. Even though, while creating regulations regarding intellectual property, a fair balance between the various fundamental rights has to be assured, that does not mean that the court should not also investigate whether, in the circumstances of the case, the granting of the requested measure, given the principle of proportionality, does not affect the fundamental right to which the party being sued invokes, too much.’ That fundamental right is usually the freedom of information”.
With this decision the CJEU strikes a balance between the positions of those who maintain that hyperlinking should never be considered an act relevant under copyright, because it is just a reference comparable to a footnote, and those who maintain that hyperlinking should always be considered an infringement of copyright because it is done by a third party and has the same effect as providing copies and full access to additional members of the public.
The discussion will continue on when the requirement of “intervention in full knowledge” of the illegality of the source is met and on when exactly the fundamental right of freedom of information prevails.
Reference: CJEU 8 September 2016, ECLI:EU:C:2016:644, GS Media / Sanoma, Playboy & Britt Dekker.