Is linking unlawful?

This post is contributed by Professor Jonathan Griffiths, Module Convenor for Intellectual Property

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Does the posting of a link to a copy of a photograph without the permission of the owner of the rights in that photograph infringe copyright? This was the question referred to the Court of Justice in (C-160/15) GS Media BV v Sanoma MediaNetherlands BV. The Court’s answer has considerable significance for the future regulation of communication over the internet. Can you be sure, for example, that images to which you post links on your blog, your Twitter feed or your Facebook page have been licensed by the person who owns copyright in those images.

The Court of Justice has already handed down a number of important judgments on the scope of the “communication to the public” right. GS Media BV  provides further guidance. The case concerned a claim for copyright infringement relating to photographs uploaded without permission onto an Australian website. The defendant in the national proceedings (in the Nethetlands) was a website which had provided a link to the unauthorised copies of the photographs on the Australian site. The right-holders in the photographs argued that, in doing so, the defendant had communicated that work to the public.

In its Judgment, the Court explicitly acknowledged that the ability to communicate via the internet is an important aspect of the right of freedom of expression and information under Art 11 of the EU’s Charter of Fundamental Rights. Accordingly, it recognised that:

“…[I]t may be difficult…for individuals who wish to post such links, to ascertain whether the website to which those links are expected to lead, provides access to works which are protected and, if necessary, whether the copyright holders of those works have consented to their posting on the internet.” [46]

As a consequence, where a person posts a link to a work in the course of a non profit-seeking activity, the Court considered it necessary to take account of the fact that such a person does not know, and cannot reasonably know, whether the work has been published with the consent of the copyright holder. Without such knowledge (or deemed knowledge), liability could not arise. However, where a person knew, or ought to have known, that a link provided access to a work illegally placed on the internet, he or she must be regarded as having communicated that work to the public. Suck knowledge is to be presumed in the case of a link posted in the course of a profit-seeking activity.

The Court’s judgment seeks to protect right-holders in the digital environment without imposing an unreasonable burden on a widely-employed form of communication. Nevertheless, the balance at which it arrives has been subject to widespread criticism. What do you think?

Please see a full discussion of the issues here  is-linking-unlawful

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