The European court has ruled that commercial hyperlinking to photographs published on a website without the copyright-holder’s consent can be illegal. This is in contrast to the situation where hyperlinks are posted that link to material freely available elsewhere on the web with the copyright-holder’s consent (discussed here).
A Playboy photo-shoot
The dispute itself is a little racy, involving images of a TV personality taken for Dutch Playboy. Before publication of the photos in the magazine, they were make available on Australian website Filefactory.com. Popular online news and gossip website GeenStjl then carried a number of stories about the photos. They stories included hyperlinks enabling the Dutch public easy access to the photos.
InfoSoc Directive - striking a balance
The legal background is less exciting, but key to the functioning of the online environment. The InfoSoc Directive aims to strike a balance between protection of creators’ rights and free discussion and comment on topical issues.
It reserves to copyright-holders the exclusive right to authorise communication of their works to the public. This, says the CJEU, breaks down into two elements:
- the act of communication of the work, and
- the communication of the work to a public.
Analysing this involves consideration of several factors:
- the role of the hyperlink user in giving access to the material to its customers, what it knew and whether the disclosure was deliberate
- whether the communication is by a different technical method, or to a group of people not in the audience originally envisaged
- whether the communication is in a profit-making context.
Too tough?
GeenStjl pointed out that it would be very difficult to find out for all hyperlinked material whether it had been made available with the copyright-holder’s agreement. And material on hyperlinked sites could be changed after the link was made available. But the court felt that this could be dealt with by taking account of how much the user of the hyperlinks knows or should reasonably know about the original publication. In this case, GeenStijl had received notifications and complaints from Playboy.
And where the user of hyperlinks has a profit motive, they can be expected to check the copyright position.
Good news for content producers, but a challenge for users of hyperlinks
This decision puts new pressure on online publishers within the EU. The scenario here was at the extreme end of the spectrum, with repeated publication of stores containing hyperlinks despite notices and warnings, but the analysis will impact on much more innocent-looking situations.
It will be welcome news for content producers, who need all the weapons they can get to counter unauthorised publishing on the internet.
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