Hyperlinks To Copyrighted Material Does Not Constitute a Copyright Infringement

16th April 2016

The Advocate General states in his opinion (C-160/15) that a hyperlink to a website containing infringing content does not itself copyright infringement.

On 7 April 2016 the Advocate General issued his opinion on a copyright matter in the ongoing proceedings before the European Court of Justice (“ECJ”) which might become a landmark decision if the ECJ will follow the opinion of the Advocate General – which it usually does.

Factual background

Sanoma, the publisher of the monthly magazine Playboy (Netherlands) commissioned a photoshoot of Ms. Britt Dekker, a Dutch TV celebrity.

On 27 October 2011 GeenStijl.nl, a website operated by the GS Media, published a blog post which contained a hyperlink to leaked photos of Ms Dekker of the Playboy. These photos had been uploaded on an Australian website called Filefactory.com but had later been removed from on request of Sanoma.

On 7 November 2011 a report had been published on the GeenStijl website which contained a hyperlink to the website Imageshack.us which directed the readers to the photographs of Ms Dekker. Also Imageshack.us complied with the request of Sanoma to remove the photographs.

Then users of the GeenStijl forum posted new hyperlinks to other websites where the photos in question could be viewed.

Proceedings

Sanoma and others sued GS Media claiming that the posting of the hyperlinks to the leaked photos of Ms Dekker had infringed the copyright. The proceedings went through all instances and are currently before the Supreme Court of the Netherlands, which decided to stay its proceedings and refer to the ECJ for a preliminary ruling on the application of Directive 2001/29/EC (directive on the harmonisation of certain aspects of copyright and related rights in the information society) (the “Directive”).

Opinion of the Advocate General Wathelet

First, the Advocate General opined that the posting of a hyperlink on a website which directs persons to another website on which works protected by copyright are freely accessible to the public without the authorisation of the copyright holder did not constitute an “act of communication” to the public within the meaning of article 3(1) of Directive.

Even though the hyperlinks lead directly to protected works, it cannot be considered as “making them available” to the public because the photographs of Ms Dekker were already freely accessible on other websites. The hyperlinks merely facilitated the finding of them whereas the person who effected the initial posting of the infringing content is actually making them available to the public.

Second, in the opinion of the Advocate General, it is not important whether or not the person who posts a hyperlink on a website to another website on which works protected by copyright are freely accessible to the public is, or ought to be aware, that the copyright holder has not authorised the placement of his works on that particular website or that, additionally, those works had not previously been made available to the public with the copyright holder’s consent.

How does this affect internet users?

According to the Advocate General internet users are usually not aware and do not have means to check whether or not the initial communication to the public of a protected work freely accessible on the internet was effected with or without the consent of the copyright holder. If they were at the risk of proceedings for infringement of copyright under the Directive whenever they post a hyperlink to works freely accessible on another website, they would be much more reluctant to post them. This, so the Advocate General, would be to the detriment of the proper functioning and the very architecture of the internet as well as to the development of the information society.

Therefore, the concept of “communication to the public” must be interpreted in the light of the foregoing objectives.

Conclusion

The awaited decision of the ECJ will have a very practical significance for online forums and aggregator websites and will bring some very helpful clarification to this area of law.

If you have any queries in relation to the content of this update, please contact:

Diarmaid Gavin (diarmaid.gavin@rdj.ie) or Christine Werner (christine.werner@rdj.ie) of the IP Team; or

Darryl Broderick (darryl.broderick@rdj.ie) or Tina English (tina.english@rdj.ie) of the Media Team.