Europe’s top court has ruled that knowingly posting links to copyrighted material can be an infringement of rights holders’ rights — even though the copyrighted material in question is being hosted elsewhere. People posting links in a for-profit scenario also have an obligation to have checked they are not infringing copyright, in the court’s view.
The ruling pertains to a specific case involving a Dutch news website, GeenStijl, which repeatedly posted links to Playboy photos of a local TV presenter. The photos at the centre of this dispute were being hosted on various other websites without the consent of the rights holder, and GeenStijl had apparently ignored requests by the rights holder to stop linking to the copyrighted material. Although the case dates back to 2011, an appeals court in the Netherlands sought a preliminary ruling from the CJEU on the hyperlinks copyright point and that’s now been issued today.
While the CJEU ruling notes the importance of the flow of information between individuals online for fundamental rights such as freedom of speech and expression, it also emphasizes the need to maintain what it dubs a “fair balance” between the interests of rights holders and the fundamental rights of users of protected objects. It’s that ‘balance’ the ruling seeks to achieve by creating a distinction between knowingly posting a link to copyrighted material vs doing so unaware and with no intention of seeking financial gain.In its announcement of the ruling, the CJEU writes (emphasis mine):…the Court holds that, for the purposes of the individualised assessment of the existence of a ‘communication to the public’, it is necessary, when the posting of a hyperlink to a work freely available on another website is carried out by a person who, in so doing, does not pursue a profit, to take account of the fact that that person does not know and cannot reasonably know that that work had been published on the internet without the consent of the copyright holder. Indeed, such a person, does not, as a general rule, intervene in full knowledge of the consequences of his conduct in order to give customers access to a work illegally posted on the internet.
In contrast, where it is established that such a person knew or ought to have known that the hyperlink he posted provides access to a work illegally published, for example owing to the fact that he was notified thereof by the copyright holders, the provision of that link constitutes a ‘communication to the public’. The same applies if that link allows users to circumvent the restrictive measures taken by the site where the protected work is posted in order to restrict the public’s access to its own subscribers.Furthermore, when hyperlinks are posted for profit, it may be expected that the person who posted such a link should carry out the checks necessary to ensure that the work concerned is not illegally published. Therefore, it must be presumed that that posting has been done with the full knowledge of the protected nature of the work and of the possible lack of the copyright holder’s consent to publication on the internet. In such circumstances, and in so far as that presumption is not rebutted, the act of posting a clickable link to a work illegally published on the internet constitutes a ‘communication to the public’
As Fortune notes, the ruling is unusual in that it goes against the earlier opinion of the court’s advocate-general who back in April recommended that links to copyrighted material should not be considered a copyright breach themselves. AG opinions are usually highly influential on the CJEU — but in this instance the court has sought a third way, ruling that linking when unaware of copyright infringement and in a not-for-profit context is fine but adding a set of exceptions where a hyperlink could be considered a copyright breach in and of itself. It’s a ruling that threatens to complicate how copyright operates online in Europe by adding another lay of complexity
.Most obviously the ruling could have substantial implications for search engine Google, whose core business involves hyperlinking to content hosted elsewhere. (In Europe the search engine has a more than 90 per cent share of the search engine market.) But the impact could potentially stretch to any for-profit online publisher which hyperlinks to others’ content. Although it remains to be seen how broadly courts in EU Member State interpret the notion of posting a link for financial gain.
Google publishes a Transparency Report providing an ongoing tally of search result links that it has removed at the request of rights holders. This shows that in the past year it removed 832 million links to content on 342,000 websites. And while that’s already a very large number, all those instances involve Google responding to a takedown notice from a rights holder. By contrast the CJEU ruling appears to imply that for-profit entities such as Google might have a pre-emptive responsibility to check th…