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Could hyperlinking constitute copyright infringement?

In our increasingly online society, hyperlinks have become the default method for us to share articles, photos and other online material with our friends and online associates.  When sending a hyperlink via email or social media we are unlikely to consider whether or not we could be committing an act of copyright infringement.  However, just that question has recently come before the Court of Justice of the European Union (CJEU).

Though the CJEU is yet to decide the case, the Advocate General has issued his opinion, in which he states that hyperlinking to infringing material that is already freely accessible to the public should not be considered copyright infringement. Though not binding, his opinion is likely to be persuasive to the CJEU.

Background

Sanoma is the publisher of Playboy magazine in the Netherlands. This case concerned photos from a photoshoot of Dutch TV personality Britt Dekker that had been commissioned by Sanoma. The photos were published by an Australian website without Sanoma’s permission, amounting to copyright infringement. GeenStilj Media published a hyperlink to the photos on the Australian website, also without Sanoma’s consent.

The Australian website then removed the photos at Sanoma’s request, but GS Media published a new hyperlink to a different website which displayed the photos. When that second website also removed the photos, users of GS Media’s forum continued to post new links to other websites showing the photos. GS Media refused to remove any of these links despite requests from Sanoma.

Sanoma then initiated proceedings against GS Media, alleging copyright infringement on the basis that GS Media had breached the Copyright Directive by “communicating a work to the public” without Sanoma’s authorisation. The case made its way to the Supreme Court of the Netherlands, which referred the question of whether publishing a hyperlink constitutes copyright infringement on this basis to the CJEU.

Advocate General’s opinion

Advocate General (AG) Wathelet issued his opinion on 7 April 2016, confirming that he did not consider that publishing a hyperlink constitutes copyright infringement. His opinion focussed only on the hyperlinks published on GS Media’s website rather than whether or not copyright had been infringed by the photos being posted on any other sites.

The AG’s opinion turned largely on the view that hyperlinking to protected material does not constitute an “act of communication” for the purposes of the Copyright Directive. Even if the hyperlink leads directly to the protected works, this cannot constitute “making the works available to the public” as they are already freely accessible on another website. Whilst hyperlinks may help facilitate the discovery of such works, the act of “making available” is committed by the person who made the initial communication, ie uploading the photos to the website in the first place.

Implications

The implications of this case will not become clear until the CJEU has made its decision. It is not bound to follow the AG’s opinion (though it is likely to be persuasive), and the decision is likely to depend in part on the factual assessment of whether GS Media’s intervention in posting the hyperlinks was indispensable to the photos being made available to visitors of GS Media’s website.

However, if the AG’s opinion is followed, this will certainly be good news for organisations that provide web platforms which enable the sharing of hyperlinks either by that organisation or by users of that site. Such organisations (and indeed, individuals in the day-to-day course of using the internet) will not have to worry about being subject to copyright infringement claims every time they post or share a hyperlink.

If the CJEU does not concur with the AG, this case could have far-reaching implications for organisations and individuals, who could potentially be at risk of copyright infringement claims every time they post a hyperlink.

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