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L as in Linking, Law and Liability

07.12.2016

Linking is a delicate issue in the EU and has been for the last couple of years. It’s been subject to judgments of the Court of Justice of the European Union (CJEU) and is a hot topic in the copyright reform(s) taking place across the EU. Most people will agree that links are an important part of the Internet, but there are differing opinions on how links should be regulated. For copyright holders, for example, links are an important tool in utilising their content, but links can also be used to infringe their rights. Copyright holders have the exclusive right to authorise or prohibit any communication to the public of their works, by wire or wireless means. The right is preventive in nature and in some cases, copyright holders may refer to it to stop unwanted links to their works, but not always. Let’s elaborate.

Svensson stirred the pot

The debate on linking did not start with the CJEU’s so called Svensson case in 2014, but it did indeed get more heated after that. In the Svensson case – or more formally case C-466/12 Svensson and others versus Retriever Sverige AB – a group of journalists had published articles on a newspaper’s website that was open to everyone. Retriever operated a website containing links to articles published on other websites, including links to the articles of journalists in question. The journalists claimed that Retriver made use of their protected works without their permission and filed for copyright infringement. The case ended up in the CJEU, which was tasked to consider whether Retriever’s actions amounted to a communication to the public of the journalists’ articles and thus to an infringement of the journalists’ rights.

The Court focused on two things: 1) the act of communication and 2) the public. It found that the act of communication includes the provision of links to protected works. So far so good for the journalists. The CJEU then moved on to the definition of the “public” and found that it refers to a fairly large number of people, for example, all potential users of a website containing links. However, at this point, the case took a debated turn and the Court added the following twist: if the alleged infringing act of communication concerns the same protected works and is done by the same technical means as the original communication to the public, it is only an act of communication to the public if the works can be accessed by a “new public” that the copyright holders did not take into account when they first authorised the initial communication to the public. In this case, the newspaper’s website, where the journalists had published their works, could be accessed by anyone anywhere and the original public of the articles was thus everyone with access to the Internet. The links on Retriever’s site did not bring the articles to a new public, and the journalists could therefore not stop them.

Linking to unlawful content – GS Media in a nutshell

In Svensson, the journalists’ articles linked to by Retriever had been legally published on the newspaper’s website. But what if they hadn’t been? In fall 2016, the CJEU provided another landmark linking case – C-160/15 GS Media BV versus Sanoma Media Netherlands BV and others – addressing just that; linking to unlawful content.

Sanoma Media is a newspaper publisher that had acquired the right to publish a number of photos in their magazine from a photographer. GS Media in turn operated one of the most visited websites in the Netherlands, where the case took place. GS Media published a link on its website leading to the photos Sanoma Media had acquired the rights to without Sanoma Media’s consent and before Sanoma Media itself had published the photos. GS Media ignored Sanoma Media’s cease and desist demands, and although Sanoma Media managed to get the photos removed from the source GS Media had originally linked to, GS Media and its website users found other sites that had posted the same photos and published new links on GS Media’s website. Sanoma Media sued GS Media for copyright infringement and the case made it all the way up the CJEU upon referral from the Supreme Court in the Netherlands. The CJEU was, essentially, to consider whether and under what circumstances posting a link on a website to works protected by copyright that have been made freely available without the consent of the copyright holders is an act of communication to the public. In other words, if and when copyright holders can intervene with links to unlawful content.

The CJEU referred to previous cases, such as Svensson, and stated that the concept of communication to the public includes two criteria: an act of communication and the public. However, the CJEU recognized that communication to the public also requires an individual assessment, which takes into account various autonomous and independent criteria, such as the role of the user, whether there is a new public, and whether the communication is of a profit-making nature.

Before the judgement at hand had been published, there was some uncertainty as to how the Court would deal with the Svensson “new public” criteria stating essentially that posting of links to works freely available on another website is not communication to the public and copyright holders cannot intervene. In the case at hand, the photos were indeed freely available to everyone online, but luckily for rightholders, the Court found that in Svensson, the Court intended to refer only to posting of links to works which are freely available on another website with the consent of the copyright holders. The Court thus opened for the possibility that links to unlawful content may constitute a communication to the public.

Moreover, for the purposes of the individual assessment mentioned above, the CJEU drew a number of other important conclusions as well:

Not-for-profit cases. When a person that provides a link to a work freely available on another website is acting without pursuing a profit, the fact whether that person is or should have been aware of the unlawful nature of the works must be taken into account. If such person is not or cannot be expected to have been aware of the unlawfulness of the linked content, there is no communication to the public. On the other hand, when such a person knew or ought to have known that the link provides access to works unlawfully placed on the Internet, for example, if they have been notified thereof by the copyright holders, the provision of the link constitutes a communication to the public and copyright holders can intervene with it.

For-profit cases. When links are posted to pursue a profit, the person posting the links can be expected to have checked whether the works concerned are lawfully published on the website to which the links lead. Provided such presumption is not rebutted, an act of communication to the public exits and the copyright holders can intervene.

In the case at hand, GS Media operated its website for-profit. The works were freely available, but Sanoma Media had not authorised the publication of the photos and Sanoma Media had also informed GS Media that the photos are posted unlawfully. GS Media’s actions thus constituted en unlawful communication to the public of the photos.

Linking is lawful, linking is unlawful, linking is lawful…

So, when is linking lawful and when is it unlawful? Based on the above, there are clear cases when links are legal; for example, if the link leads to works that are made freely available to all Internet users with the consent of the rightholders. There are also clear cases when links are illegal; for example, when the link leads to works that have been published without the consent of the rightholders and the linker is aware of this fact and is even pursuing profits. However, in between there are still a number of grey areas that probably have to be solved on a case by case basis.


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