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Breach Of Copyright: Taking On The Many-Headed Hydra Of Online Publication

Breach Of Copyright: Taking On The Many-Headed Hydra Of Online Publication

Roddy Cairns

There was a potentially significant development in online copyright law recently as Advocate General Wathelet delivered an opinion on whether the act of posting hyperlinks to websites which displayed protected works without the copyright owner’s consent could amount to a breach of copyright. This was amongst the questions referred to the European Court of Justice by the Supreme Court of the Netherlands in the case of GS Media BV v Sanoma Media Netherlands BV and others.

Sanoma was the copyright holder of nude pictures of Dutch celebrity Britt Dekker, which were due to appear in the Dutch version of Playboy magazine. Before the relevant edition was published, the photos were leaked by websites: filefactory.com and imageshack.us. It is clear that these two websites breached copyright by communicating the works to the public without the permission of their owner. However, the dispute centred around a third website, operated by GS Media BV, which posted hyperlinks directing users to the first two websites rather than displaying the offending photos directly. The key question for the AG to consider was whether this action also constituted an unauthorised “communication to the public”, and therefore breached copyright.

This is certainly not a novel issue. In the 2014 CJEU case of Svensson v Retriever Sverige, the Court considered this question in almost identical circumstances and held that the act of posting a hyperlink to a site that was freely available did not constitute “communication to the public” as it did not make the works accessible to a “new” public. However, that case was dealing with hyperlinks to websites which had authorisation to reproduce the works.  The issue of whether the same decision would have been made if the original websites were themselves breaching copyright remained unanswered.

The current AG opinion makes clear that whether or not the original websites breached copyright was irrelevant. The crucial point is whether or not the intervention of the hyperlinker is “vital or indispensable” to the public gaining access to the works. Communication to the public will only take place if the copyrighted works are otherwise not accessible, but for the hyperlinker’s actions. In both Svensson and the present case, the works were freely available to the general public on other websites.  The hyperlinker simply made access easier. If the copyright owner wanted a remedy for the breach of copyright, they should seek it from those who originally breached the copyright: namely the websites which posted the pictures in the first place and therefore made them originally available.

If the AG’s opinion is followed by the Court, there could be relief and concern in equal part. On one hand, there is an element of common sense to the decision: the real breach of copyright has been carried out by filefactory.com and imageshack.us, and redress should be sought against them. Hyperlinking is commonplace, and in many cases the hyperlinker will have no knowledge of whether the content being linked to breaches copyright. On the other hand, the opinion could cause real difficulties in online copyright enforcement. In this case, the copyright holder managed to force both imageshack.us and filefactory.com to remove the offending content. However, copyright owners could find themselves facing a many-headed Hydra if new hyper-linking sites keep popping up to replace those taken down.

Roddy Cairns
Trainee Solicitor

LChalmers