Are hyperlinks to copyrighted content made available on the internet without the consent of the right holder "communications to the public" and therefore copyright infringements? According to the CJEU, they may be!

Previous cases

The CJEU already had the chance to rule on the legitimacy (under copyright law) of hyperlinks to copyrighted works in the Svensson (C-466/12) and Bestwater (C-348/13) cases. In both cases the court came to the conclusion that hyperlinks to copyrighted works freely available on another website are not "communications to the public" (ie a "new public") and therefore do not require the consent of the right holders. The question whether it would matter if the works had been made available on the website with or without the consent of the right holders was not discussed in these prior decisions. It therefore was only a matter of time until the CJEU was confronted with the question whether links to works made available on another website without the consent of the right holders required the right holders‘ consent (as "communications to the public"). In the court’s most recent judgement on hyperlinks (C-160/15) it had the chance to answer this question.

The background of the case

The publisher of Playboy-magazine had sued a company providing hyperlinks to a website on which photos (of a lightly clad or even naked celebrity) had been made available without the consent of the right holder (ie the publisher of the Playboy-magazine). The case went up to the Supreme Court of the Netherlands, which referred questions to the CJEU for a preliminary ruling, asking, in essence, whether and under what circumstances posting of hyperlinks to protected works freely available on another website without the consent of the right holder constitutes a "communication to the public" within the meaning of Art 3(1) InfoSoc-Directive.

The court’s decision

In its judgement, the CJEU clarified that its decisions in the Svensson and the Bestwater cases only referred to the posting of hyperlinks to works which have been made freely available on another website with the right holders‘ consent. On the other hand, in cases where hyperlinks have been posted to works freely available on another website, but without the consent of the right holders, it has to be assessed "whether those links are provided without the pursuit of financial gain by a person who did not know or could not reasonably have known the illegal nature of the publication of those works on that other website or whether, on the contrary, those links are provided for such a purpose, a situation in which that knowledge must be presumed." What the court thereby (probably) wanted to express is: If the person posting the hyperlink knew or ought to have known that the hyperlink provides access to a work illegally placed on the internet – for example owing to the fact that he was notified thereof by the copyright holder – the hyperlink constitutes a "communication to the public." In cases, where the posting of hyperlinks is carried out for profit, it must be presumed that the posting has occurred with the full knowledge of the protected nature of the work and the possible lack of consent to the publication on the internet - it therefore constitutes a "communication to the public". Such presumption is rebuttable.

Hyperlinking – status quo

Based on the three decisions rendered by the CJEU on hyperlinks the status quo can be summarised as follows:

  • Hyperlinks to copyrighted content freely available on another website with the consent of the right holder are not "communications to the public" within the meaning of Art 3(1) of the InfoSoc-Directive,
  • even when the work appears in such a way as to give the impression that it is appearing on the site on which the clickable link is found (Framing/Inline Linking).
  • Where a hyperlink makes it possible to circumvent restrictions taken by the site where the protected work is posted in order to restrict the access to such work to its own subscribers ("paywalls"), the posting of such link constitutes a "communication to the public" within the meaning of Art 3(1) of the InfoSoc-Directive.
  • Hyperlinks to content freely available on another website without the consent of the right holder are "communications to the public" within the meaning of Art 3(1) of the InfoSoc-Directive, if the person posting the link knew or ought to have known that the link provides access to a work illegally placed on the internet.
  • In the case that the posting of the hyperlink is carried out for profit, there is a rebuttable presumption that the poster had such knowledge.

What to take away from the latest decision:

The consequence of the latest decision is that persons posting hyperlinks should take notifications, informing them that they link to content illegally made available on the internet, seriously. They might even consider implementing a Notice-and-Takedown system to efficiently handle such notifications. Persons posting hyperlinks for profit should even consider proactively verifying whether the content to which they link is illegally published on the internet.

Open questions: There are so many – a short selection:

  • What does posting hyperlinks for profit mean? Is the fact that a website containing links is financed by third party advertising sufficient? Or is it even sufficient that the website is run for commercial purposes (eg any company website)?
  • Which restrictions have to be in place in order to assume that a link to a work constitutes a communication to a "new public" and therefore a "communication to the public" within the meaning of Art 3(1) of the InfoSoc-Directive? Is circumventing of a pre-roll advertisment sufficient (like the Austrian Supreme Court assumes)?
  • What does unfair competition law have to say on hyperlinking to copyrighted content?

Copyright and Hyperlinking – a story to be continued…