Copyright aspects of hyperlinking

A hyperlink, or simply a link, is a reference to data found elsewhere on the internet. It is the most common tool used to share information online and is oftentimes considered to be a sine qua non to the smooth functioning of the internet as an avenue for freedom of expression and information. It is also a controversial subject in copyright law which, in recent times, had to adapt to the realities brought about by the digital revolution.

Until recently, online media organizations relied on the decision delivered by the Court of Justice of the European Union (CJEU) in Svensson and Others v Retriever Sverige AB (C466/12)for guidance on whether hyperlinks constitute a “communication to the public” - one of the principal actions giving rise to copyright violation.

In delivering its judgment, the CJEU held that:

“a communication…concerning the same works as those covered by the initial communication and made…by the same technical means, must also be directed at a new public, that is to say, at a public not taken into account by the copyright holders when they authorized the initial communication to the public.”

In defining what constitutes a “new public”, the CJEU held that where a website is not subject to restrictions, such as a paywall or an obligation to subscribe, the hyperlink does not make the protected works available to a “new public” and, consequently, there is no requirement to obtain the copyright holder’s consent prior to posting the hyperlink.  On the other hand, where hyperlinks allow users to bypass such restrictions, the new users would constitute a “new public” on the basis that they were not taken into account by the copyright holders when they authorized the initial communication.

However, a recent judgment in the names of GS Media v Sanoma Media Netherlands and Others (C160/15) suggests that there is more to the matter of hyperlinks and copyright. While confirming the position set out in the Svensson case that a communication to the public requires both an “act of communication” and “a new public”, the CJEU added that an “individual assessment” should also be applied in each case. 

In defining the parameters of the “individual assessment”, the CJEU held that Article 3(1) of the InfoSoc Directive “must be interpreted as meaning that, in order to establish whether the fact of posting, on a website, hyperlinks to protected works, which are freely available on another website without the consent of the copyright holder, constitutes a ‘communication to the public’ within the meaning of that provision, it is to be determined whether those links are provided without the pursuit of financial gain by a person who did not know or could not reasonably have known the illegal nature of the publication of those works on that other website or whether, on the contrary, those links are provided for such a purpose, a situation in which that knowledge must be presumed.”

In other words, hyperlinks to protected works that are:

1. Freely accessible; and
2. Published without the author’s consent on another website,

do not constitute a “communication to the public”. This position is, however, subject to the qualification that the person posting the link:

1.        Does not seek financial gain; and
2.        Acts without knowledge that those works have been published illegally.        

The CJEU has sensibly distinguished ordinary internet users, who cannot reasonably be expected to undertake a rights clearance exercise, from those who seek to profit by sharing protected works or those who knowingly infringe copyright. 

Furthermore, it is worth noting that the element of financial gain was described by the CJEU as giving rise to a presumption of knowledge of the protected nature of the works on the person posting the hyperlink, thereby confirming the non-cumulative nature of the qualifications set out above.  

Commenting on the judgment, GS Media’s lawyer, Remy Chavannes, concluded that:

“While private individuals who unwittingly link to infringing content may be safe from copyright claims, the decision poses problems for all online media organizations in Europe...They will be expected to ascertain the copyright status of all information to which they link, which will often be impossible…The mere uncertainty about potential infringement claims will encourage both media outlets and individuals to refrain from linking, leading to less verifiable journalism and less open internet.”

The GS Media judgment marks somewhat of a departure from previous judgments on the subject of the “communication to the public” right by introducing the criterion of financial gain and the infringer’s state of mind – a departure that was welcomed by those who felt that the Svensson judgment legitimized hyperlinks to all freely available content.  

It is anticipated that the GS Media judgment will introduce a new notice-and-takedown procedure through which right holders may inform persons posting hyperlinks of the illegal nature of the publication and to take action against them in the event that they refuse to remove it. It remains to be seen, however, how the knowledge presumption will operate for persons posting hyperlinks for financial gain and the level of due diligence that such persons will be expected to undertake to protect themselves from liability.