United States: Europe Explores Its Boundaries: European Court Rules That Hyperlinking May Constitute Copyright Infringement

The Court of Justice of the European Union (CJEU) has ruled that, in certain circumstances, the act of posting a hyperlink to copyrighted works without the author's consent may constitute copyright infringement. The crucial test may be the degree of knowledge of the infringing nature of the linked material: and the court ruled that such knowledge would be presumed if the link-poster stands to make a financial gain from posting the links.

For right-holders, this decision will be welcomed as it opens a new door to effective enforcement in Europe against potential infringement. For everyone else, it raises a practical headache when posting hyperlinks to online material. Ultimately, the case demonstrates once again the challenge that the courts have in trying to balance the rights of copyright holders with the functionality of the Internet.

THE DISPUTE

The case of GS Media v Sanoma concerns a Dutch news website, GeenStijl, which published an article relating to a Dutch TV personality. The article included a hyperlink to leaked photographs from a Playboy photo-shoot published on a third-party website. Sanoma, the publisher of Playboy, asked GS Media to remove the hyperlink. GS Media failed to respond, and subsequently Sanoma succeeded in removing the images by contacting the third-party website directly. Not long afterwards, GeenStijl published another article with a hyperlink to a different site, which enabled the viewing of the same photos. That third-party site also removed the photos after being approached by Sanoma. However, GeenStijl's users then started sharing links on the news website's forum, allowing access to the photos from different sources.

Sanoma brought proceedings against GS Media for copyright infringement and, on appeal, the Supreme Court of the Netherlands asked the CJEU to clarify a number of points of EU copyright law. In particular, the CJEU was asked in what circumstances posting a hyperlink to protected works that are freely available on another website without the copyright owner's consent constitutes a "communication to the public" within the meaning of Article 3(1) of the EU Copyright Directive (2001/29).

Under Article 3(1) of the Copyright Directive, authors have the exclusive right to authorise or prohibit any communication to the public of their works. If the posting of a hyperlink constitutes a "communication to the public", then this will constitute copyright infringement if done without the author's consent.

THE JUDGMENT

The CJEU ruled that, in order to determine whether posting links on a website constituted a "communication to the public" (and, therefore, a copyright infringement), it was necessary to determine whether the poster of the link knew, or could have been reasonably expected to know, that the works had been posted without the copyright holder's consent. Such knowledge would be presumed when the links were provided for the purpose of making financial gain (unless such presumption could be rebutted).

In the 2014 case of Svensson (previously discussed on our Socially Aware social media legal blog), the CJEU held that posting a hyperlink to a source where the copyright works are already available does not constitute a "communication to the public" because the content is already freely available on the Internet. It would only become a "communication to the public" if the copyright content was communicated to a "new public". In that case, the CJEU decided that no "new public" was reached by placing of links on a website.

The CJEU distinguished the decision in Svensson on the basis that the GS Media case concerned a situation where the copyright holder did not authorise its material to be published – whereas, in Svensson, the copyright content was freely available with the right-holder's consent on a third-party website.

The CJEU also recognised that the Copyright Directive seeks to strike a balance between freedom of expression and public interest on the one hand, and the effective protection of copyright holders' intellectual property on the other. Taking account of the value that hyperlinking brings to the smooth functioning of the Internet and the exchange of information on networks, it's clear that the CJEU was keen to differentiate between different categories of users.

In the case of "ordinary" Internet users, they should not be expected to examine linked content for infringement. Therefore, copyright infringement will only take place if such user knew, or should have known, that the content was infringing. However, where the poster posts the links for profit, the poster should be expected to carry out checks prior to linking to ensure that the linked content is not infringing.

Interestingly, in coming to this decision the CJEU has reached a different conclusion than one of its top advisors. In April 2016, the Advocate General recommended that the CJEU depart from Svensson and hold that hyperlinks to freely available websites were not a communication. This approach would have given no recourse to the rights-holders.

IMPLICATIONS

In this case, the CJEU has tried to preserve the delicate balance of the EU Copyright Directive by placing the greatest burden on commercial link-posters. However, even non-for-profit organisations and consumers may now be held liable for copyright infringement if they have knowledge that the content is infringing. In doing so, the CJEU has arguably created a new "secondary infringement" regime.

For not-for-profit organisations and consumers, the good news is that the posting of a hyperlink to infringing content does not, in itself, constitute a copyright infringement. The bad news is that we are likely to see European rights-holders begin to apply the practice of issuing notice and takedown notices to parties who post links to infringing websites, in addition to the infringing websites themselves.

For commercial posters, the case introduces diligence burdens beyond simply responding to notice and takedown notices. Given the presumption of knowledge introduced by this ruling, prior to posting a hyperlink, organisations will need to evaluate whether they are gaining any financial profit from posting the link. It's not clear how profit would be interpreted, and so we expect that this test will be the subject of further scrutiny in due course. For example, does it mean that the poster has to profit from the link itself, or could it mean profiting from the website on which the link is posted (e.g., would a website that contains advertising be enough)? The organisation will then need to determine the ultimate source of the hyperlinked material, investigate whether the content is copyright protected or not and, if it is, whether the rights-holders consented to the content being shared.

However, the process does not end there. After the hyperlinks have been posted, the poster will need to monitor the linked website for any change of content. The poster of the hyperlink may be held liable for copyright infringement if the previously harmless content on the linked website has been replaced by content that is copyright protected, and the rights-holder did not consent to the their works being published.

For rights-holders, the ruling will be welcomed as it provides them with wider recourse to protect their intellectual property and take action against those who direct others via hyperlink to infringing content.

CONCLUSION

Hyperlinks have been around a long time, and the European courts are still struggling to work out how they can be balanced with the rights of copyright holders. Two years after Svensson and, in an attempt to provide clarity, the CJEU has now introduced a concept of knowledge into the mix. No doubt this is not the last time the CJEU will be asked to address the topic. Watch this space.

Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Morrison & Foerster LLP. All rights reserved

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
Susan McLean
Similar Articles
Relevancy Powered by MondaqAI
 
In association with
Related Topics
 
Similar Articles
Relevancy Powered by MondaqAI
Related Articles
 
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions