A recent decision of the Court of Justice, the European Union’s highest court, considers the situations when posting a link on the Internet can constitute copyright infringement.
The Facts
In October of 2011 a photographer took erotic photos of an individual that were to be published in the December 2011 edition of Playboy magazine. The publisher (the “Publisher”) had the full rights to publish the photos and to exercise the rights and powers arising from the photographer’s copyright.
GS Media B.V. (the “Website Operator”) operates a website which posts articles relating to news, scandalous revelations and investigative journalism. The site is viewed by more than 230,000 visitors daily in the Netherlands.
The website received a message from a person using a pseudonym which included a hyperlink to an electronic file hosted on a website located in Australia that was dedicated to data storage. The electronic file contained the photos of the individual that were to be published in the magazine. On the same day, the Publisher asked the Website Operator to prevent the photos in issue being published on the website since they had not been previously published and were illegally posted on Australian site.
Notwithstanding the request, an article relating to the photos entitled Nude photos of Ms. Dekker was published on the website together with a hyperlink that directed users to the Australian website where another hyperlink allowed them to download files containing the photos. On the same day, the Publisher sent a demand by email requiring that the hyperlink to the photos be removed from the website.
The Website Operator failed to respond but the photos in issue were removed from the Australian website. Shortly thereafter the Publisher retained counsel who sent an additional demand letter requiring the removal of the article and the hyperlink and any comments posted on the site.
The Website Operator responded by publishing another article discussing the dispute and accompanied by a hyperlink to another website where some of the photographs could be viewed. The operator of that website complied with the publisher’s request to remove them.
A third article was then published on the website entitled Bye, Bye, Wave, Wave Playboy which contained a hyperlink to the photos in issue. Forum users of the website then posted new links on other websites where the photos in issue could be viewed.
Shortly thereafter the photos were published in Playboy magazine.
The Proceedings
The Publisher and others brought an action claiming that by posting the hyperlinks the Website Operator had infringed the copyright relating to the photographs, among other things. This litigation proceeded before the courts of the Netherlands until it reached the Supreme Court of the Netherlands. The Supreme Court stayed the proceedings and referred certain questions to the Court of Justice of the European Union.
The reference to the Court of Justice dealt with the issue of whether in the circumstances of this case there had been a communication to the public of the photographs which would constitute copyright infringement.
The Court of Justice had previously determined that the concept of “communication” to the public includes two criteria; an act of communication of a work and the communication of that work to a public. Applying this concept they had concluded in previous cases that posting hyperlinks on a website to works freely available on another website was not a communication to the public. Basically, they said that in such a case there was no new public and a new public was required.
The court referred to the fact that the Internet is of particular importance to the freedom of expression and of information and that hyperlinks contribute to its sound operation as well as to the exchange of opinions and information.
The court said that posting a hyperlink to a work freely available on another website by an individual who was not attempting to profit from such activity would not be actionable. In contrast where an individual knew or should have known that the hyperlink posted provides access to a work illegally placed on the Internet or without the consent of the copyright owner this would be a different situation and would constitute a communication to the public.
In addition, when a posting of a hyperlink is carried out for a profit, the person who posted such a link should be expected to carry out the necessary checks to ensure that the work concerned is not illegally published on the website to which the hyperlinks lead. As a result, it should be presumed that such a posting has occurred with the full knowledge of the protected nature of the work and the possible lack of consent to publication on the Internet by the copyright holder. In such circumstances if the presumption is not rebutted, the act of posting a hyperlink to a work, which was illegally placed on the Internet constitutes a communication to the public and infringes the copyright owner’s rights.
The Canadian Position
Under the Canadian Copyright Act, the owner of a copyright relating to a work has the sole right in the case of any literary, dramatic, musical or artistic work to communicate the work to the public by telecommunication. In addition, the communication of a work to the public by telecommunication includes the right to make it available to the public by telecommunication in a way that allows a member of the public to have access to it from a place and at a time individually chosen by that person. Finally, copyright under the Act includes the sole right to authorize these rights.
It has been found that a content provider who includes on a website page an automatic or embedded link which effects the transmission of a work to a recipient without the need of further action by the recipient implicitly represents that it is responsible for the material at the linked site and authorizes the communication of the work.
The issue of the liability for those who provide links that are not automatic and display content is an open issue in Canada. In the context of an action for defamation, the Supreme Court of Canada observed that there was a fluidity of evolving technologies and the court did not make any comment concerning other types of links.
Comment
In the absence of a specific decision on point a Canadian court might well be influenced by the position that was taken by the Court of Justice if this issue was to arise in Canada. However, the European decisions have been criticized on the basis that they interpret the right to communicate a work to the public too broadly and provide a solution that is not practical on a day-to-day basis.
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