Is posting a hyperlink to a work which is protected by copyright allowed? The Court of Justice rules as follows: yes and no.
Ever since 2012, Sanoma and Dutch shockblog GeenStijl have been facing each other in court. GeenStijl.nl had posted links on its website to as yet unpublished photos for Playboy, a Sanoma publication. Sanoma claimed that GeenStijl was thus violating its copyright. We focused on this case back in December 2012 and June 2014. With the Court of Justice ruling, this long running case is now approaching a final decision.
Who posts the link?
Posting links to material which is protected by copyright is allowed, even if the copyright owner has not given permission. This is different when the organisation posting the link has a profit motive, like GeenStijl. In that case, posting links is not allowed because it concerns a disclosure, which constitutes a copyright violation. The Court rules namely that parties with a profit motive are expected to research whether the work to which the link leads has been published legitimately.
When a site links to copyright protected material, which has not been published by the copyright owner, the link constitutes a new public announcement. And that is not allowed without permission from the copyright owner.
GeenStijl posted a link leading to a site on which copyright protected photo material was published without permission from the copyright owner. Because GeenStijl has a profit motive and was aware that the photos had been published without permission, it has violated the owner’s copyright.
The Court also rules that websites without a profit motive cannot reasonably be expected to do the same research into whether there might be a copyright violation. Therefore, if one party does not have a profit motive and does not know that the publication has taken place without permission, then linking is permitted.
Linking is and is not permitted
To summarise, when may links– to illegal content – be posted and when not:
Yes, if the site has no profit motive and the illegal nature of the publication is not known;
No, if the site does not have a profit motive, but the illegal nature is known;
No, when the site has a profit motive, unless it can be proven that there were sufficient indications that the works had been legally published.