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Internet Hyperlinks and Copyright Holders

posted 9 years ago

Rapid technological
developments and globalisation have brought new challenges and it may be that situations
arise which were not previously encountered and/or explored.  All the areas of the Law have been affected
including – of course – Intellectual Property.

This brief overview will focus
on the effects of this change on Copyright and specifically on Internet Hyperlinks
and the right to communicate a creation to the public pursuant to
article 3.1 of Directive 2011/29/EC
by elaborating on
two
of most recent and leading cases and fully

The said article provides as
follows: Member States shall provide authors with the exclusive right to
authorise or prohibit any communication to the public 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.

 

Nils Svensson and others v Retriever Sverige AB

There has been an ongoing debate
and discussion on whether internet links should be treated as an act of
communication to the public within the meaning of article 3.1 of the said Directive or not.

In line with the recent and
relevant case law development (Football Association Premier league; 
C-403/08 & ITV Broadcasting; C-607/11), the European Court of Justice
issued its judgement on the  Svensson case (
C-466/12), on 13
February 2013.
The
concepts of communication and public are to be interpreted in a broad manner,
inasmuch as public communication can exist solely by making available the work
or service to an indeterminate number of potential users in such a way that
they may access it, even if they do not make use of that possibility. Nonetheless,
it is pointed out that for a specific act (i.e.
the creation of a hyperlink) to be considered as an act of communication to the
public within the meaning of the relevant 3.1 article, the communication must
be directed at a new public. According to the Court, a new public is a public
that was not taken into account by the copyright holders at the time the
initial communication was authorised.

 

 

 

GS Media BV v
Sanoma Media Netherlands BV, Playboy Enterprises International Inc.,Britt
Geertruida Dekke

 

The most recent case on the
matter is C-160/15. In this case an editor of a monthly magazine, commissioned
a photoshoot of a Netherland socialite. GS Media, operator of the internet site
GeenStijl, published advertisements and a hyperlink directing viewers to an
Australian website where the photos in question were made available without the
consent of the magazine editor. Despite demands from the said editor, GS Media
refused to remove the hyperlink in question. When the Australian website
removed the photos upon Sanoma’s request (magazine editor),  GeenStijl published a new advertisement which
also contained a hyperlink to another website on which the photos in question
could be seen. That site also complied with Sanoma’s request to remove the
photos. Finally, internet users who frequent the GeenStijl forum posted new
links to other websites where the photos could be viewed.

In these
circumstances, the Hoge Raad der Nederlanden (Supreme
Court of the Netherlands)
decided to stay the infringement claim
proceedings and to refer the following questions to the
European Court of Justice for a preliminary ruling:

       I.           
If anyone other
than the copyright holder refers by means of a hyperlink on a website
controlled by him to a website which is managed by a third party and is
accessible to the general internet public, on which the work has been made
available without the consent of the rightholder, does that constitute a
“communication to the public” within the meaning of Article 3(1) of
Directive 2001/29?

Does it make any difference if the
work has also not previously been communicated, with the rightholder’s consent,
to the public in some other way?

Is it important whether the
“hyperlinker” is or ought to be aware of the lack of consent by the rightholder
for the placement of the work on the third party’s website mentioned in 1(a)
above and, as the case may be, of the fact that the work has also not
previously been communicated, with the rightholder’s consent, to the public in
some other way?

    II.           
(a)   If
the answer to question 1(a) is in the negative: in that case, is there, or
could there be deemed to be, a communication to the public if the website to
which the hyperlink refers, and thus the work, is indeed findable for the
general internet public, but not easily so, with the result that the
publication of the hyperlink greatly facilitates the finding of the work?

(b)      In
answering question 2(a), is it important whether the “hyperlinker” is or ought
to be aware of the fact that the website to which the hyperlink refers is not
easily findable by the general internet public?

 III.           
Are there other
circumstances which should be taken into account when answering the question
whether there is deemed to be a communication to the public if, by means of a
hyperlink, access is provided to a work which has not previously been
communicated to the public with the consent of the rightholder?’

The Advocate General (AG)
delivered his non-binding opinion on the 7th April 2016. His
conclusions can be summed up in three major bullet points:

      I.           
An act of communication requires an intervention

   II.           
No need for the rightholder’s authorisation

III.           
The ‘new public’ criterion inapplicable in this
case

 

The AG argues that as the hyperlinks are posted on a website which
direct to works protected by copyright that are freely accessible on another
website they cannot be classified as an ‘act of communication’ within the
meaning of Article 3(1) of Directive 2001/29. In his view the operator of
the website which posts the hyperlink- in this case GS Media- is not
indispensable to the making available of the photographs in question to users,
including those who visit the GeenStijl website and thus this act does not
constitute an ‘act of communication’.

Further to the above the Advocate
General also stressed the importance of Hyperlinks to the architecture of the
Internet:

Although the circumstances at issue are particularly flagrant, the
Advocate General considers that, as a general rule, internet users lack the
knowledge and the means to verify whether the initial communication to the
public of a protected work freely available on the internet was done with or
without the consent of the holder of the copyright. If internet users risk
liability for copyright infringement every time they place a hyperlink to works
which are freely accessible on another internet site, they would be much more
hesitant to post those links, to the detriment of the proper functioning and
very architecture of the internet as well as the development of the information
society

The Judges of the Court now
begun their deliberations in this case and it remains to be seen if the final
judgement of the Court of Justice will agree with Advocate General’s Opinion.

 

If the opinion of the Advocate
General is followed and such acts are not deemed to be infringing copyright,
experts around the world worry that this will dilute the exclusive right
conferred to copyright holders to communicate their work to the public.

Copyright holders will only have
the right to pursue a claim against
the person who
effected the initial communication to the public without his authorisation ( if
that person is known and/or can be traced ) but not a person
who posts links directing to
copyrighted work. This certainly limits (‘dilutes’) the respective right.

It will eliminate any
obligation to check if the work they are communicating and directing to via the
link is copyrighted or by a licensee.  The gateways will be open for misuse as there
will be no safety net and third parties will be able to act more freely in ‘bad
faith’.

Copyright holders already have
trouble enforcing their rights and are at a constant battle against infringers.
New technology constantly gives new ammunition to infringers to illegally
obtain and copy creations.   Hyperlinks are a battle not to be lost.

This article is simply to
provide an overview of the developments on the matter and is by no means legal
advice.

 

For any further information
please contact Mrs. Ermioni Pavlidou at
ermioni@kyprianou.com.cy at (+357)22447777.

 

Author

Ermioni Pavlidou, Intellectual
Property Department

 

Author

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