To link or not to link, that is the question

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Antonio Muñoz Vico (senior associate of the Madrid Intellectual Property practice)

The CJEU rules that providing links to content for financial gain without the author’s consent constitutes copyright infringement

The reference to Hamlet is not by chance: four hundred years after Shakespeare’s death, links have become the usual way of surfing the web, of jumping comfortably from one information to another, of recommending books and films, of comparing data and of forming a more or less solid opinion. To a certain extent, links enable us to be (or not to be) in the digital environment. This is why the judgment by the Court of Justice of the European Union in the “GS Media” case had aroused so much interest: what was at stake was the possibility of providing links legally. But can such an everyday practice be considered illegal?

In its Svensson and BestWater judgments, the CJEU concluded that providing links to press articles or videos that had been published on the internet by the author or with his consent and which could be freely accessed was lawful. In the GS Media case the doubts arose because the party providing the link sought to provide access to works that were circulating on the web without the consent of the copyright holder.

The CJEU was in a difficult position: it either had to rule that links to contents without the rightholder’s consent was lawful -which may be contrary to its former judgments-, or consider them unlawful, which would make it difficult to continue such commonplace practices as sharing videos, photographs or music on social networks.

Background of the case

In the autumn of 2011, Carli Hermès travelled to Lanzarote (Spain) to take a series of photographs of a well-known Dutch TV presenter. The photographs, in which the presenter was naked, were to form part of an exclusive report that Playboy intended to publish in December. However, at the end of October, GeenStilj (digital media outlet that forms part of the GS Media group) moved in first and published a link to a website to which the photographs had been leaked, which meant that Playboy lost the scoop. Playboy’s publisher brought legal action against GS Media in Holland due to breach of copyright. The case reached the Supreme Court of the Netherlands, which referred the matter to the CJEU for a preliminary ruling.

Judgment by the Luxembourg court

In its judgment, the CJEU analyses how to combine the legitimate right of the author to authorize or prohibit the communication of his works to the public on the internet with the right to information. It opts for an individual assessment of links, based on a series of criteria taken from its own case law.

In what cases is a link communication to the public (which therefore requires the author’s consent)?

1) When a user, deliberately and in full knowledge of the consequences, provides access to a work which, without his intervention, customers would not be able to enjoy. For this communication to be “public” it must be directed at an indeterminate number of potential viewers.

2) When a link involves using a technical procedure that is different to the one initially authorized by the author (thus if the work has already appeared on the internet, this requirement would not be necessary) or is otherwise directed at a new public, different to the one envisaged by the author (if the author has not authorized the dissemination on the web, the public is always considered “new”).

3) Finally, the CJEU introduces as a decisive criterion to resolve the case, the profit-making nature of the link:

a) If the link is published without pursuing a profit

- When the person does not know and cannot reasonably know, that the work to which the link was provided was published on the internet without the copyright holder’s consent, it should be interpreted that the link does not constitute communication to the public of the work and is therefore lawful.

- However, where it is established that such a person knew or ought to have known that the link provides access to a work published illegally (e.g. because it was warned of the fact by the copyright holder), the link is unlawful.

b) If the link is published for profit

- When the link is published for profit, the person providing the link must take the necessary precautions to ensure that the work in question has not been published illegally. Therefore, in the event that the link redirects to a work published without authorization, the link will be presumed unlawful.

The judgment will have a tremendous impact on the private sector in which companies will need to ensure that their links do not direct users to content published without authorization. Indeed, a company’s use of links to content that are accessible on the web without the right-holder’s authorization may constitute copyright infringement.