If you are hyperlinking and embedding ensure you check the source of any content you are linking to.

In October 2015 we wrote an update on the legal position concerning hyperlinking to or embedding copyright content owned by someone else. Our update can be found here. At the time, two pending referrals were before the Court of Justice of the European Union (“CJEU“) and we were waiting for further guidance on the position where the content linked to was originally uploaded without the consent of the copyright holder. It’s taken the CJEU some time, but they finally handed down their decision with respect to the first of the referrals, GS Media v Sanoma, late last year.

Recap

As a brief recap, hyperlinking concerns the provision of a link to a webpage address which will take a user directly to that webpage when clicked on. Embedding concerns setting up a connection to a video which enables a user to view that video on a different webpage to where the video was originally uploaded.

The CJEU heard a number of cases on whether hyperlinking to or embedding copyright content amounted to a communication to the public of the work and therefore a breach of the copyright holders’ rights. They were, however, silent until now on whether the fact that the content had been uploaded with or without the consent of the copyright holder made any difference as to whether a breach occurred.

What happened in GS Media v Sanoma?

The case concerned a number of hyperlinks GS Media published on a website under their control linking to unpublished photos of Dutch model Britt Dekker, taken for the next release of Playboy magazine. In advertising the hyperlinks, GS Media used a headline exclaiming that they had leaked photos and used a small part of one of the photos along with the hyperlink that eventually redirected the user to a folder containing these. Sanoma repeatedly requested removal of the hyperlinks but GS Media refused to remove these and even published further reports containing the links.

Following numerous appeals, the CJEU were finally asked to provide guidance as to whether the provision of a hyperlink to a work protected by copyright made available without the permission of the copyright holder constituted an act of communication to the public.

What conclusion did the CJEU come to?

The CJEU held that posting a hyperlink to a work protected by copyright uploaded without the permission of the copyright holder will amount to a communication to the public where:

  1. the person posting the hyperlink knows or ought to know that the hyperlink leads to content that has been uploaded without the authorisation of the copyright holder, or whether the hyperlink would circumvent restriction measures placed around the content by the copyright holder; or
  2. the person posting the hyperlink does so for a profit.

If a hyperlink has been posted for a profit, the starting presumption will be that the poster did so with full knowledge that the linked-to work was uploaded without the permission of the right holder. The CJEU has adopted this approach as they would expect those posting hyperlinks for financial gain to have completed pre-post checks to ensure content has not been uploaded without the permission of the copyright holder. Unless the presumption can be rebutted, posting a hyperlink to a work made available without the permission of the copyright holder will amount to a communication to the public and a breach of the rights of the copyright holder.

In the present case, the CJEU held that GS Media did effect a communication to the public given they posted the hyperlinks for profit and were fully aware that the original content had been uploaded without the copyright holder’s consent.

Key points to take away

GS Media concerned straight-forward hyperlinks. However, the CJEU made reference to the technique of “framing” (otherwise known as embedding) as a form of linking and so arguably the decision does capture the embedding of videos. Furthermore, the Swedish courts have already applied the principles from the CJEU decision to a case concerning the embedding of a video from YouTube, suggesting national courts will consider embedding a form of hyperlinking.

Rather unhelpfully, the CJEU did not expand further on what exactly “for a profit” means. This could, therefore, arguably cover any commercial activity or even the use of hyperlinks on blogs where the adverts on these generate revenue. In the past, the CJEU has adopted the approach that a hyperlink will be posted for a profit where this makes the person’s business more attractive. In a very recent decision applying this principle by a German court, a website run with an intention to realise profits satisfied the ‘for a profit’ requirement.

Finally, the decision introduces what some are calling a notice and takedown system. Essentially, a copyright holder can notify a poster that the content they have linked to was not uploaded with their permission and request that they take this down. As a result, the poster has clearly been made aware of the fact that the content was not authorised and is caught by the CJEU ruling. This was the case in GS Media where they had repeatedly been asked to remove the hyperlinks.

Comment

As a result of the decision it’s even more important that you carefully check the source of any content you are linking to. There will undoubtedly be further cases on the CJEU ruling, particularly with respect to what exactly “for a profit” means, but for now a cautious approach should be adopted. Meanwhile, we expect the CJEU to hand down their decision with respect to the second of the referrals, Stichting Brein, within the coming months. The Advocate General has recently given his opinion on the case, arguably suggesting a widening of the scope of what amounts to a communication to the public. It will be interesting to see if the CJEU agrees.