Playtime is over: EU court rules hyperlinks infringe copyright

Earlier this month, the Court of Justice of the European Union (CJEU) confirmed that hyperlinking to creative works protected by copyright (i.e. protected works) can constitute infringement where such works have been made available to the public on the internet without the consent of the copyright owner.

This confirmation will undoubtedly have significant ramifications, particularly in view of the plethora of products and services offered online in today’s digital world (e.g. social media platforms, online news and media services, downloadable movie and TV programme services, online video streaming services, services offering books, audio books, music and educational materials for download etc.).

The facts

The case – GS Media BV v. Sanoma Media Netherlands BV, Playboy Enterprises International Inc. & Britt Geertruida Dekker (C‑160/15) (GS Media) – arose out of a complaint by the Dutch publisher of Playboy magazine regarding the posting of hyperlinks in GS Media BV’s popular Dutch website to third party websites where photographs commissioned by Playboy magazine were available to be downloaded illegally. The Playboy publisher requested that the hyperlinks be removed, but GS Media BV continued to provide new hyperlinks to other third party websites where the photographs were available for download.

The test

The CJEU confirmed that hyperlinking will constitute ‘communication to the public’ – for the purposes of Article 3(1) of the InfoSoc Directive (2001/29) – and therefore infringement of the copyright in a protected work, where:

• The hyperlink to the copy of the protected work was posted online without the consent of the copyright owner; AND
• The poster knew or ought to have known that the hyperlink was to a protected work posted online without the consent of the copyright owner; OR
• The hyperlink was posted online for financial gain (in which case it will be presumed that the poster has carried out all necessary investigations regarding the protected work and knew or ought to have known that it was protected by copyright); OR
• The hyperlink allows unrestricted public access to a protected work that would otherwise be restricted (e.g. where the hyperlink facilitates the circumvention of a paywall).

Comment

There are a few points to take away from the GS Media case —

First, there has been a shift away from previous CJEU case law on hyperlinking and copyright infringement. The earlier cases of Svensson and BestWater had been interpreted by some commentators to mean that hyperlinking would not constitute ‘communication to the public’ or copyright infringement in circumstances where the protected work was already freely available online (even where the protected work was originally made available online without the consent of the copyright owner). The CJEU in the GS Media case emphatically rejected that interpretation of the earlier case law.

Second, the poster need not be acting in the pursuit of profit to fall foul of the test set out above. In order to prove infringement, it would be sufficient for the copyright owner to establish that the poster knew or should have known that the hyperlink was to a protected work posted online without his or her consent (e.g. by producing evidence that he or she had previously requested the removal of the hyperlinks).

Third, there are a number of practical difficulties with this decision. The CJEU noted the importance of balancing the interests of copyright owners with the interests of free speech and free circulation of information online. However, the court also acknowledged the difficulties associated with ascertaining the ownership of copyright in materials posted online and the significant due diligence burden placed on posters to conclusively establish non-infringement before hyperlinking to copies of creative works.

Finally, the GS Media decision will be welcomed by copyright owners, particularly the owners of copyright in materials that are frequently pirated. However, the decision will raise huge concerns for entities who regularly utilise hyperlinks as part of their everyday profit-making activity (e.g. news and media operators, search engine operators and social media platform operators). It is entirely possible (and likely) that we will see further changes in this area as the law relating to hyperlinking and copyright infringement develops before the EU courts.