Is Hyperlinking To Infringing Content Infringement?
Apr. 15, 2016 (Mimesis Law) — The EU’s grapple with copyright and the internet continues with the consideration of whether hyperlinking to infringing content could itself constitute copyright infringement. 2016 and this is still an issue? Yes, it’s all part of the EU’s ongoing re-write of its approach to copyright in a single, digital market. I touched on this last week, looking at legislation contemplated by the EU Commission and Parliament. This week, we’re in the Court of Justice of the European Union (CJEU), considering the opinion of Advocate General (AG) Wathelet in the case of GS Media v Sanoma Media (C‑160/15).
The story began in 2011 when a Dutch website, GeenStijl operated by GS Media posted a link to an Australian website which had published photos of a Dutch TV personality, commissioned by Playboy. The Australian website published the photos without consent from Playboy or its publisher, Sanoma, and therefore constituted an infringement. Sanoma’s request request for GS Media to remove the link was refused. The Australian website however removed the photos on request from Sanoma, and GS Media in turn posted a new link to a different website showing the same photos. That website also eventually removed the photos on Sanoma’s request, but users of the GeenStijl website continued to post links to various other websites that showed the same photos. Very persistent!
Remember, the CJEU was not concerned with the Australian website, or any of the other websites that published the photos. What’s at issue here is only whether GS Media’s links to the photos constituted an infringement in itself, and whether GS Media’s knowledge of the fact that that the photos were published unlawfully by the other websites made any difference. Also, keep in mind that this case comes shortly after the Svensson (C-466/12) and Bestwater (C-348/13) cases, which looked at hyperlinking to non-infringing content that had been made available to the public by the rights holder or with their consent. So, there is a slight distinction to be made, but the principles essentially remain the same.
Without getting too technical, the issue of the Playboy photos turns on whether posting a hyperlink constitutes a communication to the public of the photos. Communicating the photos to the public is the exclusive right of Sanoma/Playboy, the rights holder. Communication made without the consent of the rights holder is an infringement under the EU Copyright Directive.
The AG held that posting a hyperlink to a site which has published infringing content, will not itself constitute a communication to the public and is therefore not infringing. The intention of the person posting the hyperlink is irrelevant, and so too is his knowledge that the content on the hyperlinked website is infringing. The practical implications of finding otherwise, would place the burden on every web user posting a hyperlink to investigate the lawfulness of the content on the linked site, or else face infringement action – an impossible task that would undermine the internet as we know it!
Although the AG takes a definitive stance, protecting the very building blocks of the internet, the CJEU is under no binding obligation to follow the AG’s opinion. We would have to wait and see what the Court decides. Holding thumbs that common sense prevails. In the AG’s own words,
It is a matter of common knowledge that the posting of hyperlinks by users is both systematic and necessary for the current internet architecture. While the circumstances at issue in the main proceedings are particularly obvious, I consider that, as a general rule, internet users are not aware and do not have the means to check whether the initial communication to the public of a protected work freely accessible on the internet was effected with or without the copyright holder’s consent. If users were at risk of proceedings for infringement of copyright under Article 3(1) of Directive 2001/29 whenever they post a hyperlink to works freely accessible on another website, they would be much more reticent to post them, which would be to the detriment of the proper functioning and the very architecture of the internet, and to the development of the information society.
