Don't hyperlink to unauthorised content (if you know it was posted without consent or do it for financial gain)
The CJEU has today confirmed that copyright owners are able to take action against those posting hyperlinks to unauthorised copyright works, so long as the person posting the link knows (or ought to have known) that the content was published illegally or does so to seek financial gain.
This is great news for copyright owners who can now take action against those who make a business out of deliberately directing internet traffic to unauthorised content. Cease and Desist notices can no longer be ignored and should now result in links being taken down.
GS Media, which operates the Dutch entertainment website GeenStijl.nl published an article about leaked nude photos of Dutch model/TV presenter, Britt Dekker, taken for Playboy. The article contained a hyperlink to photos hosted by Australian file sharing website FileFactory.com. At the request of Sanoma (the Playboy publisher), Filefactory.com removed the file but new hyperlinks leading to the unauthorised photos continued to appear on GeenStijl's website. Sanoma sued GeenStijl in the Dutch court for copyright infringement and the Dutch Supreme Court asked the CJEU for guidance on linking to unauthorised content.
Essentially the Court asked whether, and in what circumstances, the posting of a hyperlink to protected works, freely accessible on another website without the consent of the copyright holder, constitutes a communication to the public within the meaning of Art 3(1) of the InfoSoc Directive (2001/29/EC).
We previously reported on the controversial AG opinion. He thought that GS Media’s motive in placing the hyperlinks was irrelevant as was the fact that GS Media knew that the initial publication of those photographs had not been authorised by Sanoma. The CJEU today disagreed with that approach.
The CJEU confirmed that "communication to the public" should be interpreted broadly and requires two cumulative criteria: (i) an act of communication of a work; and (ii) the communication of that work to a "public". In addition, it requires account to be taken of the following complementary criteria, which are not autonomous and are interdependent, and must be applied both individually and in their interaction with one another:
- The indispensable role played by the user and the deliberate nature of its intervention.
- A communication using different technical means from those previously used OR a communication to a "new public".
- The profit making nature of the communication.
Restriction of Svensson ruling
The CJEU confirmed that the reasoning in Svensson (and Bestwater) was only intended to relate to the posting of hyperlinks to works which were made freely available on another website with the consent of the rightsholder. It could not be inferred from those decisions that hyperlinking to unauthorised content is excluded from the concept of communication to the public. Instead, the decisions emphasise the importance of the copyright owner's consent under Art 3 of the InfoSoc Directive, which provides that every act of communication to the public is to be authorised by the copyright holder.
Relevance of Knowledge and/ or Profit
The Court thought that, when the posting of a hyperlink is done by a person who does not pursue a profit, that person does not know and cannot reasonably know that the work has been published without the consent of the copyright holder. Such a person does not intervene in full knowledge of the consequences of his conduct and there is no communication to the public.
In contrast, when a person knew or ought to have known that the hyperlink he posted provides access to a work illegally placed on the internet, the provision of that link is a communication to the public. That is also the case if the link allows users to circumvent access restrictions such as a paywall, because there is a deliberate intervention without which those users could not benefit from the works broadcast. Provided these criteria are fulfilled, rights holders can take action even if the hyperlinker is not pursuing financial gain.
Furthermore, where the posting of the hyperlink is carried out for profit, it can be expected that the person who posted such a link carries out the necessary checks to ensure the work is not illegally published so that it must be presumed that the posting has occurred with the full knowledge of the protected nature of that work and the possible lack of consent from the copyright holder. In such circumstances, and in so far as that presumption is not rebutted, the act of posting a hyperlink to an unauthorised work will constitute a communication to the public.
Overall, the CJEU concluded that this ruling provides the high level of protection for authors sought by the InfoSoc Directive. It also highlighted that rightsholders should be able to put hyperlinkers on notice that the work is unauthorised and they have a right to take action if the link is not removed.
In this particular case, it was undisputed that GS Media provided the hyperlinks for profit. In addition, GS Media were aware that the photographs were unauthorised so could not rebut the presumption that the posting of the links was in full knowledge of the illegal nature of the publication. Accordingly there was a communication to the public.
Overall, the judgment is an attempt to strike a fair balance between the protection of copyright, freedom of expression and the workings of the internet.
It is a great result for content owners who can now take action against those who make a business out of deliberately directing internet traffic to unauthorised content. This is essential in cases where the original poster cannot be located. At the same time, non-commercial internet users don't need to be concerned about copyright infringement when posting hyperlinks to freely accessible internet content.
The big win for copyright owners is that a Cease and Desist notice should now mean that the link is taken down because the hyperlinker is on notice and notice/knowledge is now key. Therefore people like GS Media cannot ignore C&D letters any more.
It is new and somewhat surprising that the Court has relied on the hyperlinker's knowledge and/ or the profit-making nature of the communication in coming to its decision. Introducing the concept of knowledge into primary infringement in European copyright law is a pretty big step. On the other hand, it does make sense for the Court to try to draw a distinction between those who flagrantly profit from cataloguing unauthorised content and innocent internet users.
There will no doubt be uncertainty over the "profit" criteria in the future. It was undisputed that GS Media were acting for profit but what about those making indirect financial gain such as through advertising or increased internet traffic? The national courts will now have to grapple with that issue. In addition, those sharing hyperlinks in a commercial context may now be expected to carry out checks to ensure that the content has not been illegally published.