To link or not to link? And what to link to? That is the (copyright) question. (With apologies to the Bard). The question of whether unauthorized linking to copyrighted works constitutes copyright infringement is not new. It has been raised in a number of court cases globally involving alleged commercial infringement by content aggregators providing deep and shallow links to various websites containing copyrighted content. The aggregators then monetize the final, collated product. It is generally accepted that linking per se does not constitute infringement, but it gets more complicated when the link is to what I will loosely call “pirated content”. This issue has been raised in Europe in the “Sanoma” case (the name of the original publisher of the copyrighted photographs in question) that involved a Dutch commercial website that linked to a site containing unauthorized content (which happened to be nude photos of a prominent Dutch TV personality)! In other words, the issue involved linking to a site not authorized to host the material. While linking in this way raises a number of legal questions, linking is also essential to the smooth functioning of the Internet, which as we all know is based on the sharing and free flow of information.
Does the important role that the flow of information plays on the operation of the Internet mean that the need to link undermines the “making available” or “communication to the public” rights given to copyright holders through the WIPO Internet Treaties, even in instances where the link leads to pirated content? And if linking doesn’t invalidate these rights, how does this affect ordinary users of the Internet who cannot possibly verify the bona fides of every site on the World Wide Web? The Court of Justice of the European Union (CJEU), to whom the Sanoma case was referred by the Dutch courts, has just delivered a judgment that helps to clarify this issue.
The Court found that “the posting of a hyperlink on a website to works protected by copyright and published without the author’s consent on another website does not constitute a ‘communication to the public’ when the person who posts that link does not seek financial gain and acts without knowledge that those works have been published illegally….In contrast, if those hyperlinks are provided for profit, knowledge of the illegality of the publication on the other website must be presumed.”
What this means in plain language is that the court has drawn a line between ordinary users of the Internet who post links (in blogs, email, social media platforms etc.) to content which may infringe copyright, but who could not possibly have known that the link in question is infringing, and those who knowingly (or who ought to have known) post links to infringing content. At the same time, the Court looked at the motivation for posting the link. Where hyperlinks are posted for profit, the person responsible must verify whether or not the work linked to is, or is not, infringing. Where the profit motive is involved, there is a presumption that the work is protected (whether or not the person providing the link has knowledge or not), a presumption that must be rebutted by those posting the link.
This decision has a couple of very important elements. First, it confirms that linking without authorization infringes the right of communication to the public enjoyed by the rights-holder, and specifically that where posting is done for profit and a claim of copyright infringement is not rebutted, “posting a clickable link to a work illegally published on the internet constitutes a ‘communication to the public’”. It confirms in other words that all links are in principle a communication to the public, a protected right. At the same time, it protects ordinary users of the Internet who may innocently post links to content that may be in violation of copyright. In doing so, it cites the need to maintain a “fair balance” between protection of copyright and protection of freedom of expression and information, and other interests such as the effective operation of the Internet.
The fact that this decision seems to have struck the right balance is reflected in the way it has been interpreted by different parties. One website claims that “CJEU backs linking to unauthorised copyright under certain conditions”, while another, based on exactly the same decision, concluded that “CJEU’s GS Media copyright linking decision draws a line: ordinary internet user or commercial website?”. Is the key element of this case the fact that the right of communication to the public for rights-holders was upheld in cases involving linking to unauthorized content, or the fact that ordinary users can link to sites that may contain unauthorized material without fear of retribution? As is often the case, the truth can lie in the eye of the beholder. For the copyright industries, the decision is good news. It confirms the underlying validity of the communication right, which will be the default when there is infringement for profit or if infringement is done with knowledge. For ordinary non-commercial users of the Internet, who have no intent to infringe copyright but who may do so inadvertently, the decision is also good news as it relieves them of liability for copyright infringement, and in doing so, helps ensure that the Internet as we know it will continue to operate effectively.
If this sounds like a win/win scenario, it is. This is a good, balanced outcome. All too many critics of copyright try to juxtapose copyright protection against freedom of expression, and then paint the supposed “conflict” as a zero-sum game. It isn’t. Copyright protection on the one hand, and freedom of expression and the free flow of information on the Internet on the other, can and do co-exist and are fully compatible. This sensible and balanced decision by the CJEU helps to maintain that mutually beneficial relationship.
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