The Court of Justice of the European Union has ruled that linking to copyright infringing content can itself constitute a breach of copyright.
The ruling in the case of GS Media v Sanoma Media Netherlands and Others (C-160/15) rested on whether linking to copyright infringing content hosted on another website constitutes a “communication to the public” within the meaning of Article 3(1) of the Copyright Directive (2001/29).
In its ruling, the Court argued that linking to a work does not constitute a “communication to the public” when the work is “already freely available to all internet users on another website with the authorisation of the copyright holders”. This is because a “communications to the public” under the meaning of the Directive requires communication to “a new public”.
Where that is not the case, in particular, due to the fact that the work is already freely available to all internet users on another website with the authorisation of the copyright holders, that act cannot be categorised as a ‘communication to the public’. … Indeed, as soon as and as long as that work is freely available on the website to which the hyperlink allows access, it must be considered that, where the copyright holders of that work have consented to such a communication, they have included all internet users as the public.
However, in the GS Media case, Sanoma Media brought a claim for copyright infringement against GS Media on the basis that they had linked to images from an unpublished photoshoot, which were made posted online without the rightsholder’s consent.
In such cases, the Court ruled, two factors must be taken into account.
Firstly, was the hyperlink posted by someone acting “for a profit”?
When the posting of hyperlinks is carried out for profit, it can be expected that the person who posted such a link carries out the necessary checks to ensure that the work concerned is not illegally published on the website to which those hyperlinks lead, so that it must be presumed that that posting has occurred with the full knowledge of the protected nature of that work and the possible lack of consent to publication on the internet by the copyright holder. In such circumstances, and in so far as that rebuttable presumption is not rebutted, the act of posting a hyperlink to a work which was illegally placed on the internet constitutes a ‘communication to the public’. [emphasis added]
Secondly, did the person know, or ought they have known, that they were linking to infringing content?
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 placed on the internet, for example owing to the fact that he was notified thereof by the copyright holders, it is necessary to consider that the provision of that link constitutes a ‘communication to the public’.
The Court therefore seeks to protect ordinary users sharing links online, who cannot be expected to carry out detailed checks for every link they post.
It may be difficult, in particular for individuals who wish to post such links, to ascertain whether [a] website … provides access to works which are protected and, if necessary, whether the copyright holders of those works have consented to their posting on the internet. … Moreover, the content of a website to which a hyperlink enables access may be changed after the creation of that link, including the protected works, without the person who created that link necessarily being aware of it.
Those acting in a commercial capacity, on the other hand, are held to a higher standard.
However, legal commentators have noted that “questions marks” remain over some possibly quite common scenarios.
The GS Media decision concerns a factual scenario in which it is clear not only that the linked-to copy of the work was infringing, but the rights holder had not authorised publication of the work anywhere at all on the internet. There remains a question mark over the situation where the freely available linked-to copy is unauthorised, but the rights holder has authorised a copy to be made freely available elsewhere on the internet.
—Graham Smith & Will Smith, Bird & Bird