WIPR survey: readers back CJEU hyperlink opinion
Posting a hyperlink to a website that has published unauthorised photographs does not in itself constitute copyright infringement, WIPR readers have said.
Responding to WIPR’s most recent survey, 80% of respondents said that they agreed with the ruling handed down by an official at the Court of Justice of the European Union (CJEU) last week.
Advocate-general (AG) Melchior Wathelet said it was not relevant whether the person who placed the hyperlink should have known that the photos linked to material that infringed copyright.
His opinion will be considered by the CJEU at a later date.
The case, GS Media v Sanoma, has been making its way through courts in the Netherlands and centres on a dispute between Sanoma, the publisher of Playboy magazine in the country, and GS Media, which publishes entertainment blog Geenstijl.nl.
GS published an article on the blog that included a hyperlink to an Australian website where photos of reality star Britt Dekker could be downloaded in a zip file. The photos had been commissioned by Sanoma but the Australian website was not authorised to publish them.
Sanoma sued GS at the Amsterdam District Court and the court found that GS had infringed copyright.
GS appealed against the decision at the Amsterdam Court of Appeal. This time, the court backed GS because the photos were already published on another website before the hyperlink was put in place.
The case then made its way to the Supreme Court of the Netherlands, which asked the CJEU for clarification.
In his opinion, Wathelet said that hyperlinks only serve to facilitate discovery.
One survey respondent, who backed Wathelet, said: “It's the difference between photocopying a work of art and sending it to someone, and telling him which gallery he can view it in. One makes a copy, the other does not.”
"This is a freedom of expression issue for me," another reader noted.
Two readers said that the site did not publish the photographs directly but merely provided a link to where they were posted.
Another noted that while the issue is complicated, it is "a very slippery slope" to hold the person posting the hyperlink responsible.
"What would that mean for people posting links to YouTube?", they added.
However, not all readers agreed with the AG’s ruling.
"Hyperlinking is a form of copying. It is pure intellectual dishonesty to say otherwise. The fiction that hyperlinking is different than copying because only a code is copied has been a convenient, but disingenuous way for courts to avoid having to deal a powerful blow to the internet... Why courts are so quick to tolerate this is beyond my comprehension," one reader said.
Another added that a hyperlink will lead a user to infringe copyright and therefore has “authorised the user to commit an infringement”.
For this week’s survey we ask: “The European Parliament has voted in favour of the trade secrets directive, which aims to increase harmonisation of trade secrets laws. Do you think the proposed rules will be effective?”
