It is one of the most relevant questions of copyright law in the internet era: Does the posting of a hyperlink to a website which contains protected works constitute an act of communication to the public for which the consent of the copyright holder has to be obtained? The legal situation with regard to links to content that has been illegally uploaded remains unsolved. In his latest opinion the Advocate General rejects a copyright infringement and appears to oppose the opinion of the German Federal Court of Justice. Hence, the decision of the European Court of Justice is eagerly awaited. It is of great practical importance for media platforms, companies with an online presence, and eventually all internet users who post links to third parties’ websites, e.g. in social networks.
No permission is needed for a link to a website that contains copyright content which had been published with the copyright holder’s consent. The European Court of Justice has not qualified such act as an act of communication to the public, neither in cases of hyperlinks nor with regard to embedding within one’s own website another person’s work by means of inline-framings. Until now, the European Court of Justice has not decided whether this also applies to links to websites that display copyright content illegally, i.e. without the copyright holder’s consent.
The current preliminary ruling procedure initiated by a Dutch court helps to clarify of this point of law. The operator of a Dutch website had posted a hyperlink to an Australian website where Playboy photos of the television presenter Britt Dekker were made available without consent. The editors of Playboy thus brought an action for injunction against the operator of the Dutch website. The Hoge Raad (Supreme Court of the Netherlands) stayed its proceedings and referred it to the Court for a preliminary ruling.
In his opinion Advocate General of the ECJ Wathelet rejects an act of communication to the public within the meaning of Directive 2001/29. Ultimately, according to his opinion, no liability under copyright law arises for internet links. Given that the content on the linked websites had already been freely accessible on another website, hyperlinks do not ‘make available’ those works to the public. He stresses the importance of the posting of hyperlinks as they are necessary for the functioning of the current internet structure. Requiring users to check whether copyright owners have consented to a publication of their protected works that are already freely accessible online would unduly hamper the proper functioning of the internet.
The German Federal Court of Justice handed down a differing ruling with regard to embedding by means of inline-framing in case the content had been uploaded illegally. In his recent decision “Die Realität II” he upheld a copyright infringement without referring the case to the ECJ for a preliminary ruling.
Depending on the outcome of the proceedings it will need to be clarified how the case law of the ECJ affects the German principle of “Störerhaftung” (secondary liability for making available copyright protected content illegally). Regardless of the qualification as an act of communication to the public, German settled case law provides for liability of the person posting a link if he or she had knowledge of the unlawfulness of the content or if unlawfulness of the content is obvious.