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Europes top court rules linking can

infringe copyright if done for profit


Europes top court has ruled that knowingly posting links to copyrighted material can be
an infringement of rights holders rights even though the copyrighted material in
question is being hosted elsewhere. People posting links in a for-profit scenario also
have an obligation to have checked they are not infringing copyright, in the courts view.

The ruling pertains to a specific case involving a Dutch news website, GeenStijl, which
repeatedly posted links to Playboy photos of a local TV presenter. The photos at the
centre of this dispute were being hosted on various other websites without the consent
of the rights holder, and GeenStijl had apparently ignored requests by the rights
holder to stop linking to the copyrighted material. Although the case dates back to 2011,
an appeals court in the Netherlands sought a preliminary ruling from the CJEU on the
hyperlinks copyright point and thats now been issued today.

While the CJEU ruling notes the importance of the flow of information between
individuals online for fundamental rights such as freedom of speech and expression, it
also emphasizes the need to maintain what it dubs a fair balance between the
interests of rights holders and the fundamental rights of users of protected objects. Its
that balance the ruling seeks to achieve by creating a distinction between knowingly
posting a link to copyrighted material vs doing so unaware and with no intention of
seeking financial gain.

In its announcement of the ruling, the CJEU writes (emphasis mine):

the Court holds that, for the purposes of the individualised assessment of the
existence of a communication to the public, it is necessary, when the posting of a
hyperlink to a work freely available on another website is carried out by a person who, in
so doing, does not pursue a profit, to take account of the fact that that person does not
know and cannot reasonably know that that work had been published on the internet
without the consent of the copyright holder. Indeed, such a person, does not, as a
general rule, intervene in full knowledge of the consequences of his conduct in order to
give customers access to a work illegally posted on the internet.

In contrast, where it is established that such a person knew or ought to have


known that the hyperlink he posted provides access to a work illegally published,
for example owing to the fact that he was notified thereof by the copyright
holders, the provision of that link constitutes a communication to the public. The
same applies if that link allows users to circumvent the restrictive measures taken by
the site where the protected work is posted in order to restrict the publics access to its
own subscribers.

Furthermore, when hyperlinks are posted for profit, it may be expected that the
person who posted such a link should carry out the checks necessary to ensure
that the work concerned is not illegally published. Therefore, it must be presumed
that that posting has been done with the full knowledge of the protected nature of the
work and of the possible lack of the copyright holders consent to publication on the
internet. In such circumstances, and in so far as that presumption is not rebutted,
the act of posting a clickable link to a work illegally published on the internet
constitutes a communication to the public

As Fortune notes, the ruling is unusual in that it goes against the earlier opinion of the
courts advocate-general who back in April recommended that links to copyrighted
material should not be considered a copyright breach themselves. AG opinions are
usually highly influential on the CJEU but in this instance the court has sought a third
way, ruling that linking when unaware of copyright infringement and in a not-for-profit
context is fine but adding a set of exceptions where a hyperlink could be considered a
copyright breach in and of itself. Its a ruling that threatens to complicate how copyright
operates online in Europe by adding another lay of complexity.

Most obviously the ruling could have substantial implications for search engine Google,
whose core business involves hyperlinking to content hosted elsewhere. (In Europe the
search engine has a more than 90 per cent share of the search engine market.) But the
impact could potentially stretch to any for-profit online publisher which hyperlinks to
others content. Although it remains to be seen how broadly courts in EU Member State
interpret the notion of posting a link for financial gain.

Google publishes a Transparency Report providing an ongoing tally of search result


links that it has removed at the request of rights holders. This shows that in the past
year it removed 832 million links to content on 342,000 websites. And while thats
already a very large number, all those instances involve Google responding to a
takedown notice from a rights holder. By contrast the CJEU ruling appears to imply that
for-profit entities such as Google might have a pre-emptive responsibility to check the
legality of the content they are linking to before serving a hyperlink to a user rather
than waiting to receive a takedown notice. Which would be a huge shift.

On the flip-side the ruling suggests that individuals who post links to pirated content
online without knowing the content they are linking to is copyrighted and without doing
so for their own financial gain would not be infringing copyright with the court noting
it may prove difficult, in particular for individuals who wish to post such links, to
ascertain whether the works involved are protected and, if necessary, whether the
copyright holders of those works have consented to their publication on the internet.

As it happens, the EU is also in the midst of reworking the regions copyright law
with a proposed reform package due to be published later this month, on September 21.

Late last month a leaked version of the ECs copyright reform document suggested the
Commission is planning to extend copyright protections to publishers taking a
similar approach to the German government which, back in 2014, backed a so-
calledancillary copyright law designed to cover the news snippets displayed in Google
News. Asimilar law was enacted in Spain without a publisher opt-out and with a
mandatory fee for displaying publisher snippets leading to Mountain View to pull the
plug on its Google News service in Spain.

It remains to be seen how or whether the CJEU hyperlink copyright ruling impacts
Googles business as well as how or whether any EU-wide expansion of ancillary
copyright for publishers might play out. Weve reached out to Google for comment and
will update this post with any response.

Expressing concerns about the ECs copyright reform process late last month, Mozillas
chief innovation officer Katharina Borchert described the hyperlink as the basis of the
open Internet. The organization is actively campaigning for EU copyright law to
better reflect the reality of how web users share content online.

Discussing concerns that the Commission intends to support the expansion of


copyright for publishers last month, Borchert also touched on some of the key concerns
that are likely to follow todays CJEU ruling, telling TechCrunch: The question is what
are the obligations of content platforms and how much do you really force them to check
everything before it is finally uploaded? What does that mean for free speech?

Do you really want platforms to be the gatekeeper that make the decision of whether
something still falls under a parody exemption or it doesnt? Those are really difficult
questions where in the past the balance really hasnt been struck right.