Linking to a copyright work that is online without the permission of the rights holder can be actionable if the hyperlinker is acting in a commercial context and/or the hyperlinker knew that the rights holder had not given permission.
Sanoma (the owner of Playboy magazine in the Netherlands), commissioned a photo shoot of the Dutch TV presenter Britt Dekker. Sanoma was the exclusive licensee of the copyright in the photographs. The defendant, GS Media, operated a news website and published a hyperlink to an Australian website that featured the pictures without Sanoma’s consent. Sanoma brought a claim for copyright infringement against GS Media.
The key question for the European Court of Justice (ECJ) was to decide was whether posting a hyperlink to copyright works, which were freely available online on a third party website (without the consent of the copyright holder), was “an act of communication to the public” within the meaning of Article 3(1) of the InfoSoc Directive.
It was held that where the hyperlinker acts with knowledge that those works have been published illegally, then the hyperlinker may be liable to the copyright owner. Further, where the hyperlink was posted for profit, then it can be expected that the hyperlinker “carries out the necessary checks to ensure that the work concerned is not illegally published on the website to which those hyperlinks lead”. As such, the hyperlinker is presumed to have had full knowledge that the work was protected by copyright and the possible lack of consent from the copyright holder to publication on the internet.
GS Media’s website had posted the hyperlinks for a profit, knowing that the photos had been published without Sanoma’s permission. It was therefore liable for copyright infringement.
So why is this case significant?
The ruling resolves any lingering uncertainty concerning hyperlinks (following cases such as Svensson). Of particular significance in this judgment is the clear guidance as to the circumstances in which a hyperlinker would be held liable: the key criteria is whether there has been financial gain and the state of mind of the hyperlinker. As GS Media bitterly commented on their website (according to Google translate) “making a profit, that's something dirty, according to the European Court (jesters) sirs-and-mistresses”.
The ECJ recognised that ordinary internet users may have difficulty determining whether the works contained on a website were protected works, and if so, whether the cop yright holders of those works have consented to the works being included on the website being linked to. Therefore, the applicability of the criteria of financial gain and the subjective state of mind of the hyperlinker seems to be an attempt to distinguish between ordinary internet users and internet users who knowingly infringe copyright (or deliberately turn a blind eye to it) in their pursuit of financial gain. In context of hyperlinking, copyright infringement should no longer be regarded as a matter of strict liability as the hyperlinker’s situation and knowledge will be taken into account. This approach is akin to the law on secondary infringement of copyright, rather than primary infringement.
In practical terms, if you are going to hyperlink to another site on a commercial basis, make sure that the linked to site is not infringing a third party’s copyright.
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