A recent judgement made by the European Court of Justice (ECJ) has re­stric­ted the use of links on the World Wide Web. If you link ac­cess­ible online content, you could actually be com­mit­ting copyright in­fringe­ment. With this ruling, the ECJ has, in fact, con­tra­dicted the Advocate General’s re­com­mend­a­tion. The Opinion of the 7th of April 2016 ruled that posting hy­per­links isn’t a pun­ish­able offence:

Quote

'Ac­cord­ing to Advocate General Wathelet, the posting of a hyperlink to a website which published photos without au­thor­isa­tion does not in itself con­sti­tute a copyright in­fringe­ment.'

Wathelet pointed out how important hy­per­links are for making the internet function better and are an effective way of informing society. However, the Opinion of the Advocate General is not binding in the European Court of Justice.

ECJ: Links may infringe on copyright

The hyperlink could end up counting as 'com­mu­nic­a­tion to the public'. The judgement went to the Second Chamber of the European Court of Justice on 8th September 2016. A specific case study is the Dutch gossip blog, GeenStijl ('No style'), operated by GS Media. The blog reported about the Playboy shoot featuring TV star Brit Dekker and included a link in its article. This link contained un­li­censed copies of the nude shots. When the site was shut down, the GeenStijl operators swapped the link with another un­li­censed image source, which then caused the Finnish media company, Sanoma, (which publishes Playboy in the Neth­er­lands) to file a complaint. Although the ECJ basically agrees with the as­sess­ment of the Advocate General, Melchior Wathelet, it is not easy for private internet users to see whether an openly ac­cess­ible work has been published in a wa­ter­tight way, legally speaking. Com­mer­cial website operators, however, are expected to check the copyright.

Com­mer­cial providers must check copyright in­fringe­ment

The ECJ doesn’t fun­da­ment­ally challenge link culture on the internet, however, it’s clear that bound­ar­ies have been set when it comes to the 'Playboy' case. According to the judges, these are then exceeded if a hyperlink is con­sidered as an un­au­thor­ised com­mu­nic­a­tion to the public. According to copyright, this link belongs to the author and can only be used with licensing rights. Whether a hyperlink linking to online content falls under the concept of 'com­mu­nic­a­tion to the public' depends on various con­di­tions according to the press release issued by the ECJ:

  • The first thing is to check whether the website operator has in­ten­tion­ally linked to the un­au­thor­ised content. This is only ok for private internet users to do if they ex­pli­citly point out that the content is un­au­thor­ised.
  • Com­mer­cial website operators, unlike private internet users, can’t plead ignorance when it comes to linking to un­au­thor­ised web content. As soon as a hyperlink is placed in an article for financial gain, the website operator is required by the ECJ to examine whether the web content may have been published without the copyright owner’s consent.

Effects of the ECJ ruling

In specific cases, the ruling of the European Court of Justice concerns the com­mer­cial use of hy­per­links related to cir­cum­stances in which website operators have linked to un­au­thor­ised content a second time. The effects of the ECJ ruling go beyond in­di­vidu­al cases. The European Court of Justice also deals with the blogger community where links are fre­quently used, but only when there’s a lot of un­cer­tainty as to whether they are bordering on copyright in­fringe­ment or not. There have been dis­cus­sions as to what counts as financial gain when it comes to hy­per­links. The ECJ doesn’t have any general guidelines. This could be a disaster for blogs since website operators will be less inclined to post links to other websites as they don’t want to go to the trouble of checking the copyright. Bloggers, who don’t make much money with their website content, won’t find the hassle worth their while. If this is the case, the only pos­sib­il­ity is to leave the link in question out of the post. The ECJ judgement was cri­ti­cised by IT expert, Thomas Stadler, who raised the question of how journ­al­ist­ic websites, which are generally com­mer­cial­ised, should ensure they’re following the ECJ re­quire­ments. Instead of making jur­is­dic­tion dependent on a case-by-case com­par­is­on, which primarily takes into account possible financial gain, he should have taken into account 'those who link spe­cific­ally to copyright-in­fringing content as an ac­com­plice or par­ti­cipant of the copyright in­fringe­ment'. This article on YouTube copyright explains that the video platform is full of copyright in­fringe­ment. The material used in the videos them­selves might be copy­righted so it’s difficult to know if they are even allowed to be uploaded to the video platform, let alone whether you can link to them in your blog post. It is presumed that the blogger has checked that the content isn’t copy­righted before embedding the video in their post. It is assumed that the ECJ ruling will lead to a dis­cus­sion to determine the precise dis­tinc­tion between com­mer­cial and non-com­mer­cial use of copy­righted works. If the le­gis­lature is based on the ECJ ruling and the private use of online content is not motivated by profit, this could provide answers to a number of pre­vi­ously un­re­solved copyright-related issues.

Update: LG Hamburg im­ple­ments the ECJ judgement then back­tracks

The Regional Court in Hamburg was one of the first courts to implement the con­tro­ver­sial ECJ judgement in a legal dispute. It was, however, difficult to decide whether the site in question intended to make a profit: the decisive factor for the Hamburg court was not whether the link itself was trying to make money, but whether the linked websites were being operated with com­mer­cial intent.

This was an opinion that the judges didn’t hold for too long. Only six months later, the same chamber of the Hamburg Regional Court ruled in another case that providers of com­mer­cial websites may not be required to check links solely on the basis of whether they intend to make a profit. It also depends on whether the research is worth it.

In the judgement, the court rules that the operator of an Amazon partner program with around 15,000 affiliate links to the sales platform could not be expected to research all the links since many of them are automated and are the result of special al­gorithms. Therefore, the Hamburg Regional Court dis­so­ci­ated itself from its own jur­is­dic­tion only a few months after the con­tro­ver­sial decision.

Not only does this leave the question open about what counts as intent to make a profit, but also the cir­cum­stances as to when re­search­ing outbound links to third-party sites is no longer worth it or is too time-consuming.

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