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Hyperlinking and copyright infringement

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10/11/2016


We reported in June on the ruling of the Court of Justice of the European Union (CJEU) in Svensson v Retriever Sverige [1] that a website which redirects internet users through hyperlinks to copyright-protected material that is already publicly available does not infringe the copyright in that material.  The issue of hyperlinking has come before the CJEU again and, in an important decision, the CJEU has built on its ruling in Svensson.

In GS Media [2], the CJEU summarised the issue before it as whether, and in what possible circumstances, the act of posting, on a website, a hyperlink to protected works freely available on another website, without the consent of the copyright holder, constitutes a “communication to the public” within the meaning of Article 3(1) of the Information Society Directive. [3]

The Court explained that the Directive sought to achieve a fair balance between, on the one hand, the interests of copyright holders and related rights and, on the other, the interests and fundamental rights of users of protected objects (in particular their right to freedom of expression and to be able to access information). After a review of relevant authorities, including Svensson, the Court held that posting a hyperlink on a website to works protected by copyright and published without the author’s consent is not a “communication to the public” when the person who posts the link does not seek financial gain and acts without knowledge that those works have been published illegally.

The Court qualified this finding by stating that where hyperlinks are indeed posted for profit, there is a presumption that the posting has been done with full knowledge of the protected nature of the work and of the possible lack of the right holder’s consent to the publication. Where that presumption is not rebutted, the act of posting a hyperlink to a work illegally published on a website will constitute a “communication to the public” for the purposes of Article 3(1).

The Court also stated that where right holders make the person posting the hyperlink aware of the illegal nature of the publication to which the link is made, and where they refuse to take down the link, they will not be able to rely upon one of the exceptions to infringement set out in Article 5(3) of the Directive.

This case marks a departure from previous case law by insisting upon the relevance of the state of mind of the person posting the link. This effectively introduces an element of subjectivity into the context of primary infringement of copyright.

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[1] Case C-466/12
[2] Case C-160/15
[3] Directive 2001/29.  Article 3(1) states: “Member States shall provide authors with the exclusive right to authorise prohibit any communication to the public of their works, by wire or wireless means, including the making available to the public of their works in such a way that members of the public may access them from a place and at a time individually chosen by them.”

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