Posting links online - more guidance from the EU

If we know that content has been published online without the rightsholder’s consent, then linking to it is a breach of copyright. And, if we do this for profit, then we are presumed to know this. This is the dividing line set by new caselaw from the Court of Justice of the EU.

GS Media BV v Sanoma Media Netherlands BV and others, Case C-160/15, 8 September 2016

Posting links online - more guidance from the EU

1. Say that again?

Under EU law, copyright owners have an exclusive right to permit or prevent ‘communication to the public’ of their works. Even if already published, this would be infringed either by using a different means of communication (e.g. online as opposed to offline) or by the same means of communication to a new public (e.g. by allowing all internet users to view content that was restricted only to paying users on a paid website – see Eden Legal’s report here).

So posting content online that the rightsholder has not posted or authorised to be posted would be a communication to the public and therefore a copyright infringement. This is so even if someone else has already posted it online somewhere (without authorisation) – in principle each new communication requires the authorisation of the rightsholder.

However, from a practical point of view this requires a user who wants to link to content published online to know whether it has been posted with the rightsholder’s permission or not. The Court has decided that users who aren’t seeking to profit from posting links and who do not know whether they are authorised or not should not be deemed to be breaching copyright. On the other hand, those that do have a profit motive for the posting are presumed to have this knowledge, and are therefore breaching copyright, although they can potentially rebut this presumption by showing that they actually did not.

2. Give us an example!

In the Court’s latest decision (GS Media BV v Sanoma Media Netherlands BV and others Case C-160/15, 8 September 2016), photographs due to appear Playboy Magazine in December 2011, found their way before official publication onto a filesharing website. In October 2011, a website operator in the Netherlands, GS Media, republished part of one of the photos and links to that site, where users could download them. The rightsholders notified GS Media that this was a breach of their rights and required the links to be removed. They also had the files removed from the filesharing site. During November 2011, GS Media (and its forum users) published various additional links to the photos. Finally, in December 2011 the photos were published by Playboy Magazine.

The Court noted that the publication by GS Media was:

i) not authorised by the rightsholders (there was no publication until December 2011);
ii) done for profit; and
iii) in the knowledge that it was not authorised (Playboy’s lawyers having notified GS Media that this was so).

Therefore, it was a new act of communication to the public and breached the rightsholders’ copyright.

3. How did the Court get to this decision?

Communication to the public is not defined in EU copyright directives, so the Court has set out criteria for assessing whether there is a communication in any particular case, e.g.:

1) the role of the poster and whether the act is deliberate – if the poster knows that the posting will lead to a new set of people being able to access the work, then that may be a ‘communication to the public’.

2) the ‘public’ is an indeterminate number of potential viewers, probably a fairly large number. To communicate a work to the public we normally need a new technical means of communication or a new public using the same means.

3) whether or not the linking is for profit is relevant to the assessment.

The Court has (some would say creatively) combined these criteria in this latest case. The decision is also grounded on the requirement that EU copyright law has to maintain a balance between the interests of the rightsholders (in protecting their works and being rewarded for creativity) and of users (in freedom of expression and the “general interest”). So “innocent” publishing of links (where the poster neither has any profit motive nor knows that the content is not authorised) should be permitted. Knowledge of the unauthorised nature of the original posting is key to whether there is a breach: either actual knowledge (e.g. if notified by the rightsholder) or presumed knowledge (which the court has now said will exist if the posting is done for profit). If there is such knowledge then also the “fair use” type exceptions (e.g. news and current affairs reporting) permitted by EU directives will not be available.

4. What does this mean for content owners and posters?

In the GS Media case, there was a profit motive and the rightsholder had also put GS Media on notice that the content was not authorised for publication. So if we are the content owner then this permits us, and maybe even obliges us, to act against the original poster and against the posters of the links. If we don’t, then not-for-profit posters seem to have a good defence and for-profit posters have an opportunity to rebut the presumption that they did have knowledge, or to claim that one of the exceptions applies. This may put us in difficulties as some or all of the posters may be anonymous. On the other hand, under EU e-commerce legislation a “links” site would not normally be able to claim that they were a mere intermediary if we also notified them that the links are posted in breach of our rights.

Of course, if we are a for-profit poster of links (and we don’t have a definition of this – but expect advertising-based sites to be covered) then we might want to retain evidence somewhere showing that we have we have carried out reasonable checks regarding whether the content has been published with the rightsolder’s permission. However, the onus seems to be squarely on rightsholders to control the links and notify everyone relevant (including search engines) if they wish the links to be taken down.

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