Entrepreneurial activity and websites are now almost a synonym: companies and professionals who want to make people know about their products or services MUST be online.
That's why it's important not to underestimate how and what's being posted on your website: mentioning “innocently” third-party contents, even without the intent of violating any rules, can immediately trigger copyright violations.
A practical example: I’m the owner of an e - commerce website selling products made by other companies, so I choose:
a) to publish photos, videos or product data sheets I didn’t take (or make) on my own, since I took them directly from my Supplier’s website;
a) to add links to third party websites, always in order to provide the customers with some product information.
But did I ask for the third party’s prior authorization? And most of all, beyond such authorization, did I ascertain if the third party was the real owner of such data?
In such cases, copyright infringements are very easy to get.
Here is an analysis of the caselaw issued by the EU Court on April 27th , in order to provide some indication on the matter.
The case: a company, running an e - commerce website, sold a particular media player integrated with “add-ons” (separate software files) created by third parties and freely available on the internet.
By connecting the media player to a screen, the “add-ons” contained hyperlinks which, if clicked, redirected the user to streaming websites, controlled by third parties, on which films, television series and (live) sporting events could be enjoyed free of charge.
Such websites offered these digital contents with the authorisation of the right holder or, more often, even without it.
The peculiarity of the case is the following: the purchasers of the media player were not only private citizens, but also hotels, restaurants and/or companies taking advantage of the reproduction of the digital contents to attract customers.
In the judgement given by the Court according to “Infosoc” Directive 2001/29/EC, the most interesting part is the one talking about the liability of who spreads contents belonging to other people. In this case the Court ruled that a copyright infringement occours when:
- the defendant is aware that the linked content has not been licenced and cannot successfully invoke any free use of it;
- the defendant is acting for profit, so it can be assumed that he is aware of the legitimate/ illegitimate nature of the linked content, and cannot refute that presumption;
- the defendant's link bypasses the access restrictions to the content in question.
Hence, it can be assumed that people reproducing the content of third parties, could act like this in good faith (since they do not have any will to infring any rule), but they are unable to prove it (i.e. they didn’t ask for an authorization and took it for granted). So, everyone needs to pay a great attention when using third parties contents to advertise products/services or to attract customers: when business is the purpose of the public dissemination, the good faith does not protect against any copyright infringement and very severe claims for compensation may follow since their amount depends on the extent of the spread (n.b. a website can be visited by an indefinite number of people every day!)
Consequently, the construction of a website’s content should be carefully evaluated, preferably with prior legal assistance on its modalities.