Linkhaftung:
End of copyright
im Internet.
Linkhaftung:
End of copyright
im Internet.
from
Are you liable for links to illegal content or not? The European Court of Justice is currently dealing with this question, which is relevant for every Internet user. The Advocate General has now presented his opinion, which is unlikely to please rights holders.
Last year at the 14th @kit Congress / 4th Forum “Communication and Law” I gave a presentation on the topic “Embedded Content – Nightmare for Authors?”.
Background to link liability
The background to this was the ECJ’s decisions on embedding third-party content. In a nutshell, the ECJ concluded that a link to content (regardless of whether it is a deep link or framing) can constitute a communication to the public within the meaning of copyright law if the link opens up a new audience or another technical process is used. In turn, this means that you can link to content that is freely accessible on the internet without blocking and is not technically altered.
However, the ECJ did not clearly answer the question of whether this also applies if the linked content is located illegally on the internet. However, this question is of great relevance.
If one were to conclude that the illegality of the linked content is irrelevant, this would lead to the aforementioned nightmare for authors. They would then often have to stand idly by and watch the linking to copyright-infringing content and could only assert claims against the linked source, which is often difficult or even impossible.
If one came to the opposite conclusion, on the other hand, every Internet user would be incriminated, as every link would be a potential copyright infringement. This could in turn lead to the end of the Internet, as every link could lead to liability, which would probably result in people no longer linking at all. However, a web without links is inconceivable.
The Federal Court of Justice had indicated that the ECJ was of the opinion that there was a copyright infringement if the content was posted online without the author’s consent. However, the judges in Karlsruhe decided not to refer the matter to the ECJ again, as there was already a pending case on the issue from the Netherlands.
Link liability before the European Court of Justice
The proceedings from the Netherlands concerned the following:
The publisher of Playboy, Sanoma, had commissioned a photo reportage about Brit Dekker, who is well-known in Holland. The company GS Media published advertisements and a link to an Australian website on which pictures of the photo reportage by Sanoma could be found, albeit without Sanoma’s permission.
Sanoma asked GS Media to remove the hyperlink, which they refused to do. After the Australian website removed the images at Sanoma’s request, GS Media looked for another source to which they linked. This source was also taken down by Sanoma, whereupon GS Media looked for other sources and linked to them.
Sanoma then took GS Media to court for copyright infringement. GS Media had made it much easier to find the content, which was not easy to find, by placing the hyperlinks.
The case ultimately ended up at the ECJ.
Opinion of the Advocate General on link liability
The Advocate General at the ECJ, Melchior Wathelet, has now clearly stated his position in his opinion , to the chagrin of the authors/rights holders.
Links to freely accessible websites do not constitute making available to the public under copyright law, as the linked content has already been made available to the public. It is therefore not an act of communication to the public.
The Advocate General goes on to say that internet users do not normally know whether a protected work that is freely accessible on the internet was originally made accessible with or without the consent of the author. Nor are they in a position to find out. If internet users were at risk of being sued for copyright infringement when they set a link that is freely accessible on other websites, they would be even more reluctant to set such links, which would be detrimental to the proper functioning of the internet, its architecture as such and ultimately to the development of the information society.
Conclusion
It remains to be seen how the ECJ will decide. It usually follows the Advocate General’s requests. If it does the same in this case, the aforementioned nightmare for authors is likely to become reality.
The issue of linking to copyrighted content remains a hot topic.
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