The CJEU judgment in GS Media considers whether
hyperlinking to freely accessible, but unauthorised content
constitutes a "communication to the public" within the
meaning of the Infosoc Directive, and therefore possible
Two cases from 2014 have helped to shape the law in this area:
Svensson held that a website which hyperlinked to
protected works that were freely available online (i.e. could be
accessed by anyone using the Internet) did not infringe copyright
in the works. In Bestwater, a website that embedded
copyright protected content in its website by framing technology
was not deemed to be copyright infringement for similar reasoning
to Svensson - because the content was freely available.
The CJEU ruled that unless the original publisher used technical
access restrictions, embedded content would not reach the requisite
"new public". The cases left open the situation, however,
where the author had not approved his work to be put online in the
first place, even if it was freely accessible to all Internet
GS Media addressed this issue confirming that the
reasoning in Svensson and Bestwater was only
intended to relate to the posting of hyperlinks to works which were
made freely available on another website with the
consent of the rightsholder. It could not be inferred from
those decisions that hyperlinking to unauthorised content was
excluded from the concept of communication to the public. The CJEU
ruled that hyperlinking to unauthorised content does constitute a
"communication to the public" where the Internet
user setting the hyperlink knows or should know that the work has
been published illegally or where it does so for
financial gain. Importantly, rights holders can still bring an
action if the knowledge element is satisfied but the hyperlinker is
not pursuing personal gain.
Generally, the GS Media decision appears reassuring for rights
holders as it shifts the burden of proof onto the person setting
the hyperlink or embedding the content. Further, a cease and desist
notice should now mean that a hyperlink is taken down because the
hyperlinker is on notice, and notice / knowledge is key.
In spite of this protection, rights holder that upload content
onto their website or video sharing platforms such as YouTube are
advised to consider the following steps to help prevent copyright
infringement of their work:
reproduction of content is unauthorised without your consent
When / if authorising a third party to share the content on the
third party's website by hyperlinking or embedding to your
material, ensure that your consent is given unambiguously and
Ensure any advertisements are maintained on the embedding
website so that you continue to benefit from this revenue
Consider setting up a paywall to prevent internet users from
accessing your website without a paid subscription (albeit this
might be disproportionately restrictive)
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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1.The trade mark shall not entitle the proprietor to prohibit its use in relation to goods which have been put on the market in the Community under that trade mark by the proprietor or with his consent.
The UK government has not yet invoked Article 50 of the Treaty on European Union (this is likely to happen by the end of March), and the UK's actual exit from the European Union is at least two years away.
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