In a development that could have several far-reaching ramifications for the free flow of information in cyberspace in Europe and beyond, the Court of Justice for the European Union (“CJEU”) ruled earlier this month that linking to infringing material could amount to copyright infringement in some cases.
While the concept of contributory copyright infringement, in accordance with which a platform facilitating the infringement of copyrighted material or the dissemination of infringing material can be held liable, is a central feature of the copyright laws of several jurisdictions, this verdict, as I shall try to demonstrate in the course of this post, stretches this concept too far and could have a deleterious impact on the free flow of information in cyberspace.
Sanoma, the publisher of Playboy magazine, commissioned the photos of one Britt Dekker, a Dutch television presenter, for the December 2011 edition of the magazine. The defendant, GS Media, operates a website called GeenStijl which contains ‘news, scandalous revelations and investigative journalism with lighthearted items and wacky nonsense’ and is one of the Netherlands’ top 10 news websites.
Even before Playboy could publish these photos, in October 2011, a GeenStijl user shared on the platform a link to a website called filefactory.com which contained Ms. Dekker’s Playboy Photos without Sanoma’s consent. After Filefactory removed those photos on Sanoma’s urging, GeenStijl, vide an article on its platform, urged users to view Ms. Dekker’s Playboy photos on a different platform called Imageshack.us. After Imageshack, too, removed those photos pursuant to Sanoma’s request, GeenStijl users posted a third article on the platform in November 2011, containing links to other platforms where users could view Ms. Dekker’s pictures.
Significantly, Sanoma repeatedly asked the defendant to desist from sharing links to websites containing the infringing material at issue, but the latter refused to comply with these requests.
After the Federal Court of Amsterdam ruled against GS Media, the latter appealed against this determination to the Netherlands’ Supreme Court. Since the Supreme Court was unable to discern, in accordance with existing CJEU case law, whether or not GeenStijl’s actions amounted to ‘communication to the public’ of the copyrighted work within the meaning of the 2001 EU Copyright Directive, it referred this question to the CJEU, resulting in the verdict under discussion.
The CJEU commenced its legal analysis by noting that it was called upon to answer 3 key questions.
First, does sharing a link to a third party website, containing copyrighted content without the consent of the right holder, amount to ‘communicating a work to the public’ within the meaning of Article 3(1) of the EU Copyright Directive? Is this determination impacted in any way by the fact that the work in question has not been previously communicated to the public with the right holder’s consent? Finally, what impact does the hyperlinker’s knowledge as to whether or not the right holder’s consent has been sought, and whether or not the work has been previously communicated to the public, have on the determination of this question?
Second, if the answer to the first question is in the negative, meaning thereby that such hyperlinking does not amount to communicating the work to the public, will the answer to the first question be different if the hyperlink plays a critical role in making the public aware of the third party website containing the infringing material, in light of the fact that the website cannot otherwise easily be located on the Internet? In what way will the hyperlinker’s knowledge about the nonavailability of the website impact the answer to this question?
Finally, are there any other factors that would have a material bearing on the determination of the question as to whether or not hyperlinking amounts to communication to the public of the copyrighted work?
In order to answer these questions, the CJEU first delineated the judicially recognized parameters for constituting ‘communication to the public’ of a copyrighted work. It specifically noted the following 3 parameters.
First, whenever a party’s intervention plays an indispensable role in making the public aware of any copyrighted work, in that the work would remain unbeknownst to the public without such intervention, such an intervention can be said to amount to communication of a work to the public.
Second, the term ‘public’ would necessarily include an indeterminate body of persons; it is imperative that the work be communicated to a sufficiently large quantity of people for it to amount to ‘communication to the public’. Further, either the technical means of communicating must be new or the work must be communicated to a set of individuals to whom the work has not been previously communicated.
Finally, the communication of the work in pursuance of a desire to earn profit is another material circumstance in determining whether or not the act in question amounts to ‘communication to the public’.
Curiously, the CJEU, instead of testing the facts of the case at hand against the touchstone of these 3 factors, immediately decided to embark upon the exercise of distinguishing the facts of this case from the other cases in which this question had arisen for its consideration.
More specifically, noting that the two cases in which it had arrived at the conclusion that hyperlinking to copyrighted works hosted by third parties would not amount to ‘communication to the public’ would not control the outcome of this case, the CJEU held that in both those cases the copyrighted work was displayed on a third party’s website with the explicit consent of the copyright owner. The two cases can be found here and here.
Since the copyright owner’s consent had not been obtained by the third party websites to which users clicking the hyperlinks hosted by GeenStijl were led, the CJEU held that the ratio in the two previously decided cases would have no application to the case at hand.
While the CJEU did recognize the proposition that hyperlinks play a critical role in the sound operation and robust dissemination of information and opinions on the Internet, its holding does not regard this as a determinative factor.
Categorization of hyperlinkers
Crucially, the Court, for the purpose of ascertaining whether the act of the hyperlinker amounts to ‘communication to the public’, divided such hyperlinkers into two categories.
In the first category fall hyperlinkers who do not host a link to a third party website containing the copyrighted material in pursuance of a desire to earn profit. Such hyperlinkers, according to the Court, cannot be presumed to know whether or not the consent of the copyright owner has been sought by the third party before the publication of the work on its website.
This being the case, such a hyperlinker’s actions can amount to ‘communication to the public’ only in two circumstances: First, if the hyperlinker can be reasonably expected to know that the work in question has been hosted on the third party’s platform without the copyright owner’s consent, for instance when the copyright owner explicitly asks the hyperlinker to remove the hyperlink. And, second, when the hyperlink serves as as a tool to circumvent the measures institutionalized by the third party to restrict access to the copyrighted work, inasmuch as such a hyperlink effectively serves as a pathway to make the work available to a significantly larger population than was intended by the third party.
In the second category fall those hyperlinkers who engage in the business of hyperlinking for the purpose of earning profits. In case of such hyperlinkers, the CJEU holds, there would be a rebuttable presumption to the effect that the hyperlinker knows whether or not the work has been published by the third party with the copyright owner’s consent. Put differently, whenever the third party hosts a copyrighted work without the copyright owner’s consent, the hyperlinker would be presumed to know that such a work is being illegally hosted, and the onus would then lie upon the latter to show how he was actually unaware of the factum of copyright infringement.
Applying these principles to the facts of the case, the Court held that the act of hyperlinking engaged in by the defendant was in pursuance of a desire to earn profit and the defendant was aware of the fact that Sanoma had not authorized the hosting of the photos on the third party websites in question. This being the case, the hyperlinking under consideration amounted to ‘communication to the public’ of the copyrighted work – an act which the copyright owner is exclusively authorized to engage in.
Wider ramifications of decision:
While the principal reason underpinning the CJEU’s adoption of a wide and liberal interpretation of the phrase ‘communication to the public’ seems to be its desire to ensure that the legislative intent of safeguarding the rights of copyright owners is duly honoured, it is hard to fathom how the Court could have regarded profit motive as the determinative criterion to ascertain the liability of hyperlinkers.
More specifically, while no one would cavil at the proposition that a party knowingly allowing its platform to be used for purposes of hyperlinking to a website containing infringing material should be held liable, it is difficult to comprehend how the mere factum of engaging in hyperlinking to earn profits could be presumed to equip the hyperlinker with the knowledge that the subject matter of the hyperlink is of an infringing character.
As David Post notes, the presumption created by the CJEU, which has the practical effect of holding a hyperlinker liable for copyright infringement merely on account of the fact that the hyperlinking is done in pursuit of financial gain, fails to take note of Samuel Johnson’s truism: “no man but a blockhead ever wrote, except for money.”