Playboy Case Sets New Standard in EU for Posting Hyperlinks to Unauthorized Copyrighted Works
You had better be careful before posting on your commercial website clickable links to copyright protected works found on-line—at least, if you operate your business in the European Union (the “EU”).
At the EU level, Article 3(1) 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 (the “Copyright Directive”) provides that: “Member States shall provide authors with the exclusive right to authorize or prohibit any communication to the public[1] of their works, by wire or wireless means, including the making available to the public of their works in such a way that members of the public may access them from a place and at a time individually chosen by them”[2]
Therefore, every act of communication of copyright protected works to the public must be authorized by the rightholder. However, whether the mere provision of a hyperlink to a work — that had already been posted on-line by third-parties without the authorization of the rightholder – – amounts to such a “communication to the public” has been a unresolved issue for many years.
This until now.
On September 8, 2016, in the “Playboy Case”[3], the Court of Justice of the European Union (the “CJEU”) clarified that posting of a hyperlink on a website to works, protected by copyright and published without the author’s consent on another website, does not constitute a “communication to the public”. This, as long as the person who posts that link does not seek financial gain and acts without knowledge that those works have been published illegally. To the contrary, if those hyperlinks are provided for profit, knowledge of the illegality of the publication on the other website must be presumed.[4]
The present decision was issued in the context of a lawsuit brought before the Amsterdam District Court (Netherlands) by Sanoma, the publisher of Playboy magazine in Netherlands, against GS Media, the operator of the popular Dutch website GeenStijl.
In 2011, Sanoma hired a professional photographer to take photos of the famous model Britt Dekker. The same year, Sanoma — which retained the exclusive right to publish such photos — found out that in GeenStijl were posted hyperlinks to third parties’ websites, where unauthorized copies of the photos at issue were published and could be downloaded.
Thus, Sanoma sued GS Media for copyright infringement. The case was ultimately brought before the CJEU, for a preliminary ruling related to the interpretation[5] of the notion of “communication to the public” sets forth by Article 3(1) of the Copyright Directive.
In its decision, the CJEU tried to strike a balance between the rights of copyright holders and the “freedom of expression and of information.”[6] In particular, the CJEU stated that an Internet user makes an act of communication to the public when:
1. the user knows, or should have known, that the hyperlink posted provides access to a work illegally placed on the Internet;
2. the user posts the link “for profit”. In this case, indeed, the user should carry out the necessary checks to ensure that the work linked to is not illegally published[7]; and
3. the communication is directed to an indeterminate number of potential Internet viewers, and especially to viewers that were not authorized (nor expected) by the copyright holder.[8]
Analyzing this factors, the CJEU found that, by posting the hyperlinks, GS Media made an unauthorized “communication to the public” of the photos depicting the model Britt Dekker. Indeed, (i) GS Media was aware that Sanoma had not authorized the publication of the photos on the Internet (considering that, before the litigation started, Sanoma asked GS Media to remove the unauthorized photos from its website), (ii) GS Media provided the hyperlinks for profit, and (iii) the hyperlinks made it easier, for an inestimable number of potential viewers, to find the photos on the Internet.
What may be the implications of this decision for websites’ operators?
The present decision provides a high level of protection for copyright holder and, at once, imposes a high level of diligence (and relevant costs) for those sharing hyperlinks in a commercial context, the latter being expected to check whether the content has not been illegally published.
In this regard, it will be interesting to observe how the principles set forth by the CJEU will be actually applied in the day-to-day online commerce and, in particular, which type of “checks” the websites’ operators will have to carry out. This in light of the great amount of copyrighted works that is currently available on-line, and also considering the difficulties that websites’ operators might find in checking whether the righholders have actually given their consent to such publications.
Footnotes
