The legal assessment of hyperlinking and copyright

Hyperlinking has become a very common thing on the internet. Every hyperlink is enabling direct and fast retrieval of relevant or related information. Looking at it from a legal point of view it still is unclear what hyperlinking really is. Which and whose rights and obligations are involved with hyperlinking? The European Court of Justice of the EU (ECJ) in recent cases shed some light on the legal assessment of hyperlinking.

In order to explain this all, we have to take a step back in history. It goes back to the Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonization of certain aspects of copyright and related rights in the information society. In this directive, that has been implemented in the national law of the member states for a number of years now, the harmonization aimed at an aspect of copyright, called the author’s Right of Communication to the Public of Works protected by copyright. The principle here is that this right is exclusive to the author. No one is entitled to communicate the work to the public, unless with consent of the author. If no consent is in place, there is an infringement of copyright.

The central question was – or better: still is -: Is the hyperlink “a communication to the public”?
A few years back, in 2014, the ECJ in a Swedish case, called the Svensson-case, came to the conclusion concerning the placing of links or hyperlinks. The Svensson case was as follows:

Journalists wrote press articles that were published in the Göteborgs-Posten newspaper and on the Göteborgs-Posten website. Retriever Sverige operated a website that provides its clients, according to their needs, with lists of clickable Internet links to articles published by other websites. Those articles were – with consent of the author – freely accessible on the Göteborgs-Posten newspaper site. If a person clicks on one of those links of Retriever Sverige, it is not apparent to this person that he has been redirected to another site in order to access the work (protected by copyright) in which he is interested. According to Retriever Sverige it was clear to this person that, when he clicks on one of those links, he is redirected to another site.

The ECJ held that placing of a hyperlink, that links to works protected by copyright, which have been uploaded on the internet with consent of the author, is not considered “a communication to the public”. By placing the hyperlink not a new public a public beyond the scope of the consent already given – for these Works was being addressed or explored.

One obvious question was left open in this decision of the ECJ: Is the placing of a hyperlink, that links to works protected by copyright, which have been uploaded on the internet without consent of the author, “a communication to the public”? In the GS-media case the ECJ was to answer this question in an ECJ’s judgment of September 2016. This Dutch GS Media case was as follows:

Sanoma is the publisher of the Dutch Playboy magazine. At the request of Sanoma  a photographer took some photos of a Ms. Dekker in October 2011. These photos were to be published in the December 2011 edition of Playboy. The photographer, author of the photos, gave consent to Sanoma to publish those photos on an exclusive basis. He also granted Sanoma authorization to exercise the rights and powers arising from his copyright.

GS Media operates a website by the name of GeenStijl. The website predominantly publishes ‘news, scandalous revelations and investigative journalism with lighthearted items and wacky nonsense’. The website is viewed daily by more than 230 000 visitors. GeenStijl was at the time one of the 10 most visited “news” websites in the Netherlands.

In October 2011 the editors of the GeenStijl website received a message from a person using a fake name. This message included a hyperlink to an electronic file hosted on the website located in Australia and dedicated to data storage. That electronic file contained the photos made at the request of Sanoma.

A few days later GS Media publishes on its website an article relating to those photos, portraying of Ms Dekker. The article had the title:  ‘…! Nude photos of … [Ms] Dekker’. This article ended with the following words: ‘And now the link with the pics you’ve been waiting for.’ By clicking on a hyperlink accompanying that text, users were directed to the Filefactory website, on which another hyperlink allowed them to download 11 electronic files each containing one of those photos. On the same day, an article about the arisen dispute between GS Media and Sanoma about the photos was published on the GeenStijl website. That article ended with the following sentence: ‘Update: Not yet seen the nude pics of [Ms. Dekker]? They are HERE.’ That announcement was, once again, accompanied by a hyperlink to access the website where one or more of the relevant photographs could be viewed. The operator of that website subsequently complied with Sanoma’s request to remove these also. A third article, entitled ‘Bye Bye Wave Wave Playboy’, again contained a hyperlink to the photos at issue, appeared on November 2011 on the GeenStijl website. Forum users of that website then posted new links to other websites.

It was clear that the photographer nor Sanoma gave consent to and to publish these photos on their respective websites. As all of this took place even before the photos were published in the Playboy magazine. It was obvious that GS Media (GeenStijl) was very well aware of the fact that the publication of these photos on the websites of and of took place without the consent of the photographer and Sanoma. Therefore GS Media (GeenStijl) knew this publication on websites of and of was infringing copyrights and was illegal.

Now the remaining question was: The placing of these hyperlinks by GS Media (GeenStijl); was that an infringement of the right of the Author (and i.c. of Sanoma) to communicate to the public as well. The ECJ came to the conclusion that in view of the facts of this case the simple act of placing of these hyperlinks by GS Media (GeenStijl) was an infringement to the exclusive right to communicate to the public.

In summary the ECJ considered in the first place that GS Media (GeenStijl) came to a deliberate intervention, and that GS Media (GeenStijl) was fully aware of the consequences thereof. Secondly it was held clear that without this intervention the members of the recipient public would not have had access to these Works (photos). Also the ECJ considered thirdly, that the invention by GS Media (GeenStijl) aimed at communicating a wide range of recipients that could qualify as “a public” and that this communication took place by using independent and separate technical means. Also the intervention was aiming to address new public, that is another public than the Playboy readers for which the consent was given. And finally it was held relevant that GS Media (GeenStijl) with the intervention had a commercial aim of making a profit.

Resuming this all: Is the placing of a hyperlink for commercial reasons, that links to works protected by copyright, which have been uploaded on the internet without consent of the author, “a communication to the public that is infringing this copyright? The answer seems to be: Yes, unless the “hyperlinker” can prove that even after having carried out the reasonable efforts of research, he was unable to know if the material to which the hyperlink is referring was uploaded on the internet with the required author’s consent.

Is the placing of a hyperlink – by a private person form non-commercial reasons -, that links to works protected by copyright, which have been uploaded on the internet without consent of the author, “a communication to the public, that is infringing this copyright. The answer here is less obvious. It will probably need further judgments of the ECJ to find out. But it seems the answer might something like: No, unless the author can prove that the private person has deliberate reasons to refer to such illegal content on the internet.

Finally: This article does not contain any hyperlinks.

Post Scriptum
Copyright and (the sale of) hyperlinking(-devices)

One of the exclusive rights of an author of a work protected by copyright, namely the right ‘to communicate to the public’, was a once again at issue in a very recent (26 April ’17) judgment of the Court of Justice of the EU (ECJ). A judgment taking the decision on the issue in the GS Media-case even further. This started with Dutch litigation proceedings initiated by Stichting Brein (a foundation in support of copyright owners) against a Mr. Wullems, a Dutch resident.

Via internet (his own website and other websites) Mr. Wullems sold several models of a multimedia player. That player, so-called ‘filmspeler’, is a device which acts as a medium between a source of visual and/or sound data and a television screen.

Within the ‘filmspeler’ a special open source software is integrated. This open source software enables the enduser to play files through a user-friendly interface via structured menus, and enables – without alteration thereof – to use add-ons available on the internet, created by third parties. Some of these add-ons link to websites on which protected works are made available to internet users without the consent of the copyright holders.

Those add-ons contain links which, when they are activated by the remote control of the ‘filmspeler’, connect to streaming websites operated by third parties. Some of these streaming websites give access to digital content with the authorization of the copyright holders. Other streaming websites give access to such content without consent of the author or copyright owner. The function of the add-ons is to retrieve the desired content from streaming websites and make it start playing with a simple click on the ‘filmspeler’ of Mr. Wullems.

The ‘filmspeler’ was marketed with the express statement that it enabled to watch on a television screen, freely and easily, audiovisual material available on the internet without the consent of the copyright holders.

First of all it is established that a person knew or ought to have known that the hyperlink he posted provides access to a work illegally placed on the internet. The provision of that link constitutes a ‘communication to the public’.

Secondly: It is apparent that such a link allows endusers of the website on which it is posted to circumvent the restrictions taken by the site, where the protected work is posted, in order to restrict the public’s access to its own subscribers. The posting of such a link thus is a deliberate intervention without which those endusers could not benefit from the works broadcast.

Finally, it is clear that the posting of hyperlinks is carried out for profit. The person posting such links is obliged to carry out the necessary research and checks to ensure that the work concerned is not illegally published on the website to which those hyperlinks lead. This is sufficient to presume that the posting took place very well knowing that the protected nature of that work and the possible lack of consent to publication on the internet by the copyright holder.

It is obvious that the sale of the ‘filmspeler’ was carried out in full knowledge that the add-ons contained pre-installed hyperlinks on that ‘filmspeler’, which gave access to works published illegally on the internet. The ‘filmspeler’ was marketed and sold with the aim of making a profit. It is apparent that the ‘filmspelers purchase price included specifically the possibility to get direct access to protected works available on streaming websites without the consent of the copyright holders. Endusers want to purchase this ‘filmspeler’ uniquely because the pre-installed add-ons are on it.

The ECJ came to the conclusion that the sale of such a multimedia player (‘filmspeler’) constitutes a ‘communication to the public’. And without consent of the author or copyright owner that sale is an infringement of copyright.

P.s. The producer of Hek’senkaas appealed.  In its very recent judgment of 23 May 2017 the Dutch Court of  Appeal was not ready to give a final answer to the question whether or not the “taste” of Hek’senkaas is protected under Dutch copyright law (or under EU-copyright law in as far as harmonized). In the judgment mentioned the Court of Appeal was of the opinion that prejudicial questions were to be answered by the European Court of Justice (ECJ). The most prominent question being of course: Is there any objection that the taste of a nutritional product – as an individual and intellectual creation of the author – is protected by copyright law? Ther is no alternative but to wait for the answer of the ECJ, that most probably will come with more clarity on the uncertain copyright protection of “scents”

Hans Jonkhout