April 18, 2016
Hyperlinking is Lawful Whether Authorised or Not, Says AG.
Hyperlinking is Lawful Whether Authorised or Not, Says AG.

The Advocate General (AG), a legal advisor to the Court of Justice of the European Union (CJEU), has recently given his opinion on whether hyperlinking without the original copyright owner’s permission constitutes copyright infringement in the case of GS Media v Sanoma.

The case involved photos intended for the Dutch edition of Playboy, which were leaked 2 months prematurely via the Dutch blog GeenStijl - users clicking on the links were redirected to an Australian website hosting the photos. The issue was whether this act of hyperlinking was to be considered a “communication to the public” under Art. 3 (1) of the InfoSoc Directive 2001/29. “Communication to the public” is an exclusive right of the copyright holder, which requires their permission, failing which copyright infringement occurs.

The timing of when the communication to the public occured in this case was significant. Previous cases (see Meltwater and Bestwater) only dealt with material that was freely available on the web without any restrictions e.g. paywalls. This allowed the defendants to avoid liability because the “communication” needs to be a “new public”, which is not the case if it can be freely accessed. The question here was whether a defendant hyperlinking copyrighted material before it was made available to the public would constitute a “communication to a (new) public”. In the AG’s opinion, there was no “act of communication” in the first place because the images could be accessed directly from the Australian website anyway i.e. GeenStijl’s involvement was not indispensable in giving web users access to the images.

Whilst the CJEU is still to give a preliminary ruling (a verdict for the Supreme Court of the Netherlands to interpret), the AG’s opinion is welcomed in his common sense approach  – the CJEU and AG agreeing in the majority of cases. However, if the CJEU were to take a different line to the AG, this could have a huge impact on Internet use as we know it, with all websites that can be accessed in Europe affected. Watch this space…

Tags
Online Brand Enforcement /  Domains /  Tech /  Designs & Copyright

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