The judgement of 8 September 2016 the Court of Justice (Case C-160/15) states in a very interesting argument because very common in the practice of surfing the web, namely the legality of hyperlinks according to the laws of copyright.
In the case in exam, there were some photographs protected by copyright and the company “Sanoma” had the authorization, on an exclusive basis, to exercise the rights and powers arising from the copyright.
Another website, without authorization neither by the author of the photographs nor by Sanoma, placed the photographs on the internet through an hyperlink to another website, not authorized to publish the photographs.
Assuming that authors have the exclusive right of authorizing any communication to the public of their work, the Court was asked to judge whether the inclusion in a website of an hyperlink to another site which shows works protected by the copyright (without authorization) constitutes a communication to the public, in violation of the copyright.
By one side the Court states that “It may be difficult, in particular for individuals who wish to post such links, to ascertain whether 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”.
The Court identifies the lawfulness of the behavior in the fact that the person making the hyperlink to an unauthorized website was aware or not that the work was unlawfully published on the internet, in violation of copyright.
How to demonstrate such knowledge? The Court (point 51 of the judgement) points out that: “When the posting of hyperlinks is carried out for profit, 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 the 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”. The presumption is until proved otherwise.
It is accordingly necessary, when the posting of a hyperlink to a work freely available on another website is carried out by a person who, in doing so, does not pursue a profit, to take account of the fact that person does not know and cannot reasonably know, that the work had been published on the internet without the consent of the copyright holder. If the person knew that the work had been published without the consent of the copyright holder, this constitutes violation of the copyright.
In the conclusion, the Court rules that: “in order to establish whether the fact of posting, on a website, hyperlinks to protected works, which are freely available on another website without the consent of the copyright holder, constitutes a “communication to the public” within the meaning of that provision, it is to be determined whether those 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 of those works on that other website or whether, on the contrary, those links are provided for such a purpose, a situation in which that knowledge must be presumed”.