Hyperlinks can infringe on copyright according to European Court

In a recent ruling the European Union Court of Justice has decreed that hyperlinking could infringe on copyright.

The Dutch publisher of Playboy has won a landmark victory about their photographs being uploaded on a file sharing website without their permission.

The Dutch publishing firm had made a complaint against GreenStijl after the site posted leaked images from Playboy n 2011. A “cutout” image had been used to link back to the rest of the images. GreenStijl refused to remove the image and link after being asked to do so by Sanoma Media (the Dutch Playboy publisher.

Sonoma Media went on to sue GreenStijl after presenting the argument that both the hyperlink and the element of the image used was an infringement of copyright. The case then made its way to the EU Court of Justice which has decreed that posting a hyperlink is the equivalent of copyright infringement due to the website financially benefiting from the traffic being generated.

The central element of the argument comes down to the phrasing in the Article 3(1) of Directive 2001/29: “Communication to the public of their works”. In its ruling the court stated:

“Member States shall provide authors with the exclusive right to authorise or prohibit any communication to the public of their works, by wire or wireless means, including the making available to the public of their works in such a way that members of the public may access them from a place and at a time individually chosen by them.”

There are some caveats to the ruling which includes a site posting a link to content which it doesn’t know has been posted illegally and where the site creating the hyperlink doesn’t stand to profit from the link / traffic.

We need to be clear that this ruling doesn’t just affect those websites looking to turn a profit. If the person posting the link knows the content infringes copyright, then by creating a link they are in turn infringing the original copyright.

In addition the term financial gain is really broad and could in fact cover a number of different activities. I’m thinking on page advertising, native advertising etc etc.

In the ruling the court has accepted that “hyperlinks contribute to [the Internet’s] sound operation as well as to the exchange of opinions and information in that network” and that free movement of information is essential whilst also adding “it may be difficult, in particular for individuals who wish to post such links, to ascertain whether [a] website to which those links are expected to lead, provides access to works [that] the copyright holders … have consented to … posting on the internet.” Even saying that the judgement does require the webmaster to review the content in order to ascertain that there is no infringement.

In are many times when internet users intentionally link to something they know to be an infringement of copyright, such as links to plagiarized content.

Unfortunately this is another attack on the current order of the internet by the European Courts. Let’s not forget that Google’s central algorithm has been based on hyperlinks since the very beginning.

This article was inspried by articles by Jeremy Malcolm and Andrew Liptak.

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