On 8 September 2016 (C-160/15), the Court of Justice of the
European Union (CJEU) ruled that the posting of a hyperlink to
copyright-protected works located on another website does not
constitute copyright infringement when the link poster does not
seek financial gain and acts without knowledge of the illegal
publication. However, when the posting of a hyperlink is carried
out for profit, it had to be presumed that the posting has occurred
with the full knowledge of the protected nature of that work and
the possible lack of consent to publication on the linked website
by the copyright holder.
Facts of the Case
The case involved a dispute between the operators of Dutch
web-magazine GreenStijl.nl – GS Media – and, inter
alia, Playboy Magazine. In 2011, GS Media published a
hyperlink on their weblog directing viewers to an Australian
website where photos of Britt Dekker, a Dutch TV presenter, were
made available for download. The photos which were taken for
Playboy magazine were published without the consent of the
copyright holder, Sanoma Media Netherlands. Despite Sanoma's
demands, GS Media refused to remove the hyperlink at issue. When
the Australian website removed the photos at Sanoma's request,
GeenStijl published a new hyperlink to another website on which the
photos from Dekker's Playboy shoot were available.
According to Sanoma, GS Media infringed copyright. Hearing the
appeal, the Hoge Raad der Nederlanden (Supreme Court of the
Netherlands) submitted a request for a preliminary ruling from the
CJEU on this subject.
Answer to the Question Referred for a Preliminary Ruling
This request for a preliminary ruling concerned the
interpretation of Article 3(1) of Directive 2001/29/EC, in
particular, whether the posting of a hyperlink to works, which are
available on another website without the consent of the copyright
holder, constitutes a 'communication to the public' within
the meaning of that provision.
In answering that question, the CJEU referred to its decision of
13 February 2014 (C-466/12) where the Court interpreted Article
3(1) as meaning that the posting of hyperlinks to works which have
been made available on another website with the consent of
the right holder cannot be categorized as a 'communication to
the public' as covered by that provision. Where the work is
already available to all internet users on another website with the
authorization of the copyright holder, the hyperlink did not
communicate that work to a newpublic, that is to
say, to a public that was not already taken into account by the
copyright holder when he authorized the initial publication of his
However, it could not be inferred from prior decisions that the
posting of hyperlinks to protected works which have been made
available without the consent of the copyright holders
would be excluded, as a matter of principle, from the concept of
'communication to the public'. An individual assessment is
always required. For the purposes of such assessment, account had
to be taken of several complementary criteria, inter alia,
whether the posting of a hyperlink was carried out by a person who,
in so doing, did pursue a profit and whether that person could have
reasonably known that the work had been published on the linked
website without the consent of the copyright holder.
Originally published September 30, 2016
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