The EU’s InfoSoc Directive provides for the exclusive right to communicate works to the public. In this blog Deirdre Moynihan looks at how the rules have been applied to hyperlinking.

Article 3 of the EU’s Information Society Directive[1] (‘InfoSoc Directive’) grants to rightsholders the exclusive right to authorize or prohibit any communication to the public of their works. This right and the scope of Article 3 has been the subject of a large number of cases, not all of which are reconcilable.[2] A full overview and analysis of all Article 3 case law is outside the scope of this section; our intention instead is to focus exclusively on the relationship between Article 3 of the InfoSoc Directive and the dissemination of protected works via hyperlinks.

The structure and use of the Internet has made it significantly easier to share content in different forms (including protected works) among large groups of people. Any Internet user can share a simple hyperlink to a video or article and, if that link goes viral, thousands of people will have viewed the shared content, often without consultation with or approval of the content owner. The inherent open and permissible functionality in the Internet is often therefore at odds with those aspects of copyright law that control exploitation of protected works. This tension has resulted in the CJEU considering whether the making available/sharing of a hyperlink amounts to copyright infringement under Article 3 of the InfoSoc Directive on the basis that making the hyperlink available cuts across the rightsholder’s ability to control communication of the relevant works to the public.[3]

At first glance, it’s difficult to envisage scenarios where sharing a hyperlink gives rise to copyright infringement[4] – hyperlinks are essentially functional in nature and simply make it easier to navigate through the Internet in a more direct and efficient way by directing the user specifically to the content they require without the need to visit other areas of the website first (or in some cases, the link avoids the need to log-in or subscribe).[5] It’s this functional aspect of hyperlinks that clashes with the rightsholder’s ability to control the communication of its works to the public – Internet users who share hyperlinks are also “communicating” content.

Elements of infringement of the communication to the public right

There are 2 elements to the infringement: (1) a communication and (2) that communication is made to a “public”.

It’s permissible to share content already made freely available by the rightsholder via hyperlink if the “public” to whom the original content was made available does not change or is not “new”,[6] however, liability for making content available via a hyperlink will arise in the following circumstances:

• the content shared via the hyperlink is made available to a “new” public not within the contemplation of the rightsholder when the original distribution/making available occurred (e.g. content made available to a limited group is communicated outside that group without consent);
• the hyperlink is to pay-walled content or content otherwise not generally available/accessible and the hyperlink avoids the need to purchase a subscription to the shared content; or
• the hyperlink is to content illegally published online and the hyperlinker was aware (or ought to have been aware) of that illegality.[7]

In addition to the nature of the content and the audience, a key component of the analysis concerns the status of the hyperlinker: if the hyperlinker making the hyperlinked content available does so for commercial purposes, it is presumed to have knowledge of the infringing content whereas if the “links are provided without the pursuit of financial gain by a person who did not know or could not reasonably have known the illegal nature of the publication”, no infringement will be deemed to have occurred.[8]

It’s therefore key to establish if the hyperlinker pursues financial gain, although it’s not clear what level of “financial gain” is required to trigger the presumption of infringement – it’s an open question if the threshold requires that direct revenue flows from the act of hyperlinking or simply requires that hyperlinker is a revenue generating business.

If the posting of hyperlinks is for financial gain, then:

“it can be expected that the person who posted such a link carries out the necessary checks to ensure that the work concerned is not illegally published on the website to which those hyperlinks lead, so that it must be presumed that that posting has occurred with the full knowledge of the protected nature of that work and the possible lack of consent to publication on the internet by the copyright holder. In such circumstances, and in so far as that rebuttable 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’ within the meaning of Article 3(1) of [the InfoSoc Directive].”[9]

Profit-making businesses who share content via hyperlinks will need to rebut the presumption of infringement by showing that they have carried out checks to ensure that the linked-to content is non-infringing – these checks may resemble the “upload filters” envisaged by the new DSM Directive, reviewing published terms and conditions and reservation of rights statements on the linked-to content, as supplemented by a notice and take down procedure that allows rightsholders to inform the hyperlinker of the infringing nature of the linked-to content.

The DSM Directive – Press Publications and OCSSPs.

• Press Publications: Article 15 of the EU’s Digital Single Market DSM Directive[10] (‘DSM Directive’) gives new rights to publishers of press publications when their publications are used by information society service providers: for a period of 2 years from the date of publication, press publishers can license online use of their publications to information service providers. The new right is intended to permit press publishers to recoup investment in the content they make available, which has historically been shared by aggregators and media monitoring services for profit without any payment to the original press publisher. There is no impact on existing defences and exceptions to copyright infringement and the new right does not apply to “acts of hyperlinking” (although what constitutes an act of hyperlinking is not defined).[11]
• Content providers & upload filters: The DSM Directive adds further complexity for a limited group of content providers – online content sharing services providers[12] (‘OCSSPs’) will be liable for the publication of protected works unless the rightsholder has granted has license to the OCSSP to do so. OCSSPs will no longer be able to rely on the safe harbour for hosting providers set out in the E-Commerce Directive in a potentially far reaching change to existing law and established practice: if no licence/authorization is granted by the rightsholder, an OCSSP will be liable unless they can show that (a) they made best efforts to obtain an authorization, and (b) made best efforts to remove infringing content after notification from the rightsholder and (c) acted expeditiously, upon receiving a sufficiently substantiated notice from a rightsholder to disable access to, or to remove from, their websites the protected works, and made best efforts to prevent their future uploads.

Whereas in earlier years rightsholders concentrated on taking down providers of peer-to-peer networks designed to make protected content illegally available online, other users of protected material are now at risk of copyright infringement simply by hyperlinking to third party content. It’s therefore key for any business that shares third party content to assess the potential risk of copyright infringement under the hyperlinking cases and the new DSM Directive and to consider what steps it can take to reduce/remove liability. It’s also important that businesses that conduct activities falling within the hyperlinking cases and the DSM Directive continue to monitor ongoing discussion and cases before the CJEU – this is a complex and nuanced area of law that requires detailed analysis and scrutiny to form a view of whether particular activities amount to an illegal communication to the public of a protected work.

This blog was first published as part of a white paper which you can read in full here: Algo IP: Rights in Code – 2020 Update

Endnotes

[1] Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society – https://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=CELEX:32001L0029&from=EN.

[2] See, e.g., ‘“Communication to the public” under EU copyright law: an increasingly Delphic concept or intentional fragmentation?’ E.I.P.R. 2016, 38(12), 715-717; and ‘Communication to the public or accessory liability? Is the CJEU using communication to the public to harmonise accessory liability across the EU?’ E.I.P.R. 2018, 40(5), 289-294.

[3] There appears to be a distinction in the case law of the CJEU depending on the nature of the allegedly infringing activity: cases that relate to broadcasting and re-transmission appear to be dealt with slightly differently than those relating to hyperlinking. See the articles cited at the footnote immediately above for more details. For the purposes of this section, we are concentrating on hyperlinking only.

[4] In addition to the fact that sharing a hyperlink may infringe copyright, the text (e.g. headline or title) included in a hyperlink may also infringe the rightsholder’s reproduction right if the text quoted is the author’s own intellectual creation. See, e.g., Infopaq International v Danske Dagblades Forening (Case C-5/08) [2012] Bus LR 102 and Newspaper Licensing Agency Ltd and others v Meltwater Holding BV and others [2011] EWCA Civ 890.

[5] At least 1 US court has held that hyperlinking per se does not infringe copyright as no copying is involved – the user who clicks on the hyperlink is referred to the “genuine” article. (Ticketmaster Corp., and others v. Tickets.com, Inc., No. CV 99-7654-HLH (BQRx), 2000 WL 1887522 (C.D. Cal. Mar. 27, 2000).

[6] Svensson and others v Retriever Sverige AB (Case C-466/12) [2014] Bus LR 259.

[7] GS Media BV v Sanoma Media Netherlands BV (C-160/15) EU:C:2016:644.

[8] GS Media BV v Sanoma Media Netherlands BV (C-160/15) EU:C:2016:644.

[9] GS Media, paragraph 51.

[10] European Directive on Copyright in the Digital Single Market (Directive (EU) 2019/790 of the European Parliament and of the Council Of 17 April 2019.

[11] Article 15, DSM Directive.

[12] The aim is to “target only online services that play an important role on the online content market by competing with other online content services, such as online audio and video streaming services, for the same audiences”, i.e., YouTube, Instagram. Services that have a main purpose other than that of enabling users to upload and share a large amount of copyright-protected content with the purpose of obtaining profit from that activity, such as providers of business-to-business cloud services and cloud services, which allow users to upload content for their own use, such as cyber-lockers, are excluded. Smaller operations are subject to lighter obligations but the criteria are cumulative: “platforms which have less than 3 years of existence in the European Union AND which have a turnover of less than €10 million AND have less than 5 million monthly users”. Exceeding any of these 3 triggers the full regime.