Court of Justice of the EU: The Posting of a Hyperlink Can Infringe Copyright If Done for Financial Gain

On 8 September 2016 (C-160/15), the Court of Justice of the European Union (CJEU) ruled that the posting of a hyperlink to copyright-protected works located on another web site does not constitute copyright infringement when the link poster does not seek financial gain and acts without knowledge of the illegal publication. However, when the posting of a hyperlink is carried out for profit, it has to 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 to publication on the linked web site.

The case involved a dispute between the operators of Dutch web-magazine GreenStijl.nl – GS Media – and, inter alia, Playboy Magazine. In 2011, GS Media published a hyperlink on their weblog directing viewers to an Australian web site where photos of Britt Dekker, a Dutch TV presenter, were made available for download. The photos which were taken for Playboy Magazine were published without the consent of the copyright holder, Sanoma Media Netherlands. Despite Sanoma’s demands, GS Media refused to remove the hyperlink at issue. When the Australian web site removed the photos at Sanoma’s request, GreenStijl published a new hyperlink to another web site on which the photos from Dekker’s Playboy shoot were available.

According to Sanoma, GS Media infringed copyright. Hearing the appeal, the Hoge Raad der Nederlanden (Supreme Court of the Netherlands) submitted a request for a preliminary ruling from the CJEU on this subject.

This request for a preliminary ruling concerned the interpretation of Article 3(1) of Directive 2001/29/EC – in particular, whether the posting of a hyperlink to works available on another web site without the consent of the copyright holder constitutes a “communication to the public” within the meaning of that provision.

In answering that question, the CJEU referred to its decision of 13 February 2014 (C-466/12) in which the Court interpreted Article 3(1) to mean that the posting of hyperlinks to works which have been made available on another web site with the consent of the right holder cannot be categorized as a “communication to the public” as covered by that provision. Where the work is already available to all internet users on another web site with the authorization of the copyright holder, the hyperlink did not communicate that work to a new public, that is to say, to a public that was not already taken into account by the copyright holder when he authorized the initial publication of his work.

However, it could not be inferred from prior decisions that the posting of hyperlinks to protected works which have been made available without the consent of the copyright holders would be excluded, as a matter of principle, from the concept of “communication to the public”. An individual assessment is always required. For the purposes of such an assessment, an account had to be taken of several complementary criteria, inter alia, of whether the posting of a hyperlink was carried out by a person who, in so doing, pursued a profit and whether that person could have reasonably known that the work had been published on the linked web site without the consent of the copyright holder.

This article was originally published on AllAboutIP – Mayer Brown’s blog on relevant developments in the fields of intellectual property and unfair competition law. For intellectual property-themed videos, Mayer Brown has launched a dedicated channel available here.