7 April 2016Copyright

Playboy hyperlinks do not infringe copyright, says CJEU official

Posting a hyperlink to a website that has published unauthorised photographs does not in itself constitute copyright infringement, an official at Europe’s highest court has said.

In an opinion handed down today, April 7, 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 infringed copyright.

His opinion will be considered by the Court of Justice of the European Union (CJEU).

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.

In 2011, Sanoma asked a photographer to take pictures of Dutch reality star Britt Dekker. GS then received an anonymous tip off that the photos of Dekker were published on an Australian website before they appeared in Playboy.

GS decided to publish an article on the blog that included a hyperlink to the Australian website where the photos could be downloaded in a zip file.

Sanoma started legal proceedings before the Amsterdam District Court.

The court ruled that placing a hyperlink cannot be considered a publication, but that by placing the hyperlink, GS made it possible for the public to access the photos that were otherwise not easily accessible=.

Because of this act by GS, the court found it had communicated to the public and therefore infringed copyright.

GS appealed against the decision at the Amsterdam Court of Appeal, which ruled that it did not infringe Sanoma’s copyright since the photos were already published on another website before the hyperlink was placed.

The court did, however, rule that GS acted wrongfully against Sanoma by facilitating and inducing the public to view the photos.

The case then moved to the Supreme Court of the Netherlands, which said that copyright and freedom of speech are equal fundamental rights that should be weighed against each other. But the court could not answer the question of whether placing the hyperlink was an infringing communication and asked the CJEU to clarify.

In today’s opinion, Wathelet said hyperlinks only serve to facilitate discovery.

“The actual act of ‘making available’ is the action of the person who effected the initial communication,” he wrote.

Consequently, he said, “hyperlinks which are placed on a website and which link to protected works that are freely accessible on another site cannot be classified as an ‘act of communication’”.

Sunniva Hansson, associate at law firm Wiggin, said: “Unfortunately the AG's proposed approach would serve to legitimise sites which build their business on linking to unauthorised films, books, music and other creative content. The court is unlikely to follow this 'out-there' opinion.”

The AG opinion is not binding, though the CJEU is thought to follow its advice in around 80% of circumstances.

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More on this story

8 September 2016   Europe’s highest court has ruled that posting a hyperlink to unauthorised copyright works is not a communication to the public, but has set two conditions.
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