The European Court of Justice
(ECJ) made a ruling last Thursday regarding hyperlinking and intellectual
property. And depending on who you talk to, this is either sound or the end of
the internet as we know it.
The
court ruled that hyperlinks to content without permission from the copyright
owner may be a violation of EU copyright law if it links to content that is
itself violating copyright. As people muddle through the opinion, the question
hanging over all of it is: how will this affect the internet at large?
The ECJ ruled in favor of Sanoma, the then-Dutch publisher of Playboy, who had sought to get the
news site GeenStijl (“no style”) to remove a web link to photos of TV celebrity
Britt Dekker which were unauthorized. The photos were first hosted by an
Australian image hosting website, then Imageshack, and so on, as the copyright
owner had the photos taken down from each site in turn. Each time GeenStijl
updated its links, even after Sanoma told them to stop.
Though
the ECJ has some guidance on the
hyperlink issues in the past, the court had never gotten
into the lawfulness of hyperlinking in the context of when consent for material
to be shared online was missing in the first place. In their ruling the ECJ
judges noted that there needed to be a balance between copyright holders and
publishers, but that “the posting of a hyperlink on a website to works
protected by copyright and published without the author’s consent on another
website does not constitute a ‘communication to the public’ when the person who
posts that link does not seek financial gain and acts without knowledge that
those works have been published illegally.”
“In the
present case it is undisputed that GS Media [GeenStijl’s publisher] provided
the hyperlinks to the files containing the photos for profit and that Sanoma
had not authorized the publication of those photos on the Internet,” the ECJ’s statement read. “It appears from the facts…that GS Media was aware of the
illegal nature of that publication and that it cannot, therefore, rebut the
presumption that it posted those links in full knowledge of the illegal nature
of that publication. Subject to the checks to be made by the Hoge Raad, by
posting those links, GS Media therefore effected a ‘communication to the
public.’”
This
case was also noteworthy for going against the advice of the Advocate General, who in April held that
hyperlinking does not generally form a
“communication to the public,” regardless of whether the content was uploaded
with or without the right holder’s permission. While the ECJ agreed with the
former, emphasizing the importance of the internet and hyperlinks as the method
of freedom of expression and information, but finds that if the link is
published knowingly without the right holder’s consent then it was a violation of
EU copyright law.
This
seems, as the Advocate General’s opinion argued, to suggest that the everyday
functioning of the whole internet would be at risk. After all, to be infringing
would only require that the website operator “knew or ought to have
known” that they were linking to infringing content, and that
“financial gain” as a barometer is broad enough to encompass any website that runs ads.
“This
judgment is a gift to copyright holders, who now have a vastly expanded array
of targets against which to bring copyright infringement lawsuits,” said EFF
senior global policy analyst Jeremy Malcolm to Forbes. “The result will be that websites operating in Europe will be
much more reticent to allow external hyperlinks, and may even remove historical
material that contains such links, in fear of punishing liability.”
And Eva Vonau, Camille Pecnard, and Nils Rauer of LimeGreen IP News agree that—though the reasoning is well-founded—it’s going
to be difficult in application:
All in
all, the new landmark decision resounds. It is consistent and therefore, after
all, not surprising. However, what needs some reflection is the fact that the
CJEU, in effect, creates two categories of hyperlinks, i.e. those that
constitute a “communication to the public” and those that do not.
Grounding this distinction on the subjective criterion of what the person
setting the link knew or should have known is demanding in practice. In other
words, courts will have difficulties in applying this guidance from the CJEU,
particularly those which were already reluctant to apply the findings of its
previous decisions. Also, rightholders will struggle to prove that the person
who set the hyperlink knew or ought to have known. In a commercial environment,
the shift in the burden of proof will help the right holder. Still, it is yet
to be proven that the principles now developed by the CJEU will led to balanced
decisions.
As the
latest move from Europe to restrict the internet in some way—the right to be forgotten (which also went against the advice of the Advocate General)
and copyright law updates currently under consideration that would make it an offense to publish
photographs of iconic buildings and artworks—many
people are clamoring to see how the Court’s latest opinion will work in
practice.
Particularly when it comes to Google, who obviously publishes links
to millions of websites. Up until now it has relied on taking down links when
asked to by rights holders, but the latest ruling implies that—as a
commercial operator—Google is responsible for checking the copyright status of
every site it links to in advance.
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