A case involving illegally posted material found to be in violation of copyright law could create big waves on this side of the Atlantic.
The Court of Justice of the European Union recently ruled that a website operator that allows hyperlinks to be used to link to another site where copyrighted material has been published without the explicit approval or consent of the rights holder can be found liable for copyright infringement.
Translation: If you run YouTube and someone posts an unauthorized cover, you could be responsible for it and any lost royalties or payments due to the artist whose copyrights have been violated.
Keep in mind, a few ISPs in the US have been slapped with lawsuits trying to hold them responsible for pirated or otherwise illegally posted material transferred by, hosted or downloaded through their service. In at least one case, an ISP was found responsible for infringement and fined $25 million for this kind of violation.
In this particular case, GS Media v. Sanoma Media Netherlands, the Dutch publisher of Playboy sued for the unauthorized posting of hyperlinks to photographs taken for the magazine which were then available for download.
“The Playboy publisher requested GS Media to remove the links several times. It even managed to cause third-party websites to remove the photographs from their own sites. However, a defiant GS Media continued to provide new links to other websites where he photographs were available for downloading. Eventually, the photographs were published by Playboy magazine itself,” according to Lexology.com.
The key item in consideration here was the concept of “communication to the public,” a portion of EU copyright law that’s roughly 15 years old. An older case, in 2014, ruled that “the posting of a hyperlink to a website where the copyright works are already generally available to the public does not amount to ‘communication to the public’ and therefore does not infringe the rightholder’s rights,” the website explains. However, that decision was based on the work in question already being available to the public.
“The GS Media decision distinguished the (previous) decision on the basis that it is reasoning applied to cases where the copyrighted material was available on the third-party website with the rightholder’s consent. The court considered that the position is different where the rightolder did not authorize the use of the materials on that other website,” Lexology says.
If someone is posting a link to copyrighted material without trying to make any money off the material, that would be considered “communication to the public” and a violation of copyright “only if that person knew or ought to have known that the materials were protected by copyright and made available on the third-party website without the rightholder’s consent.”
If the hyperlinks are provided for profit, the poster should carry out all “necessary checks” to make sure things are done on the up-and-up, “Otherwise there is a presumption against the person posting the hyperlink that he knew the materials were infringing,” Lexology explains.
So what does this ruling do?
“The decision in GS Media creates a new form of copyright infringement,” the site continues. “Essentially, it is a new judge-made form of secondary infringement. The court tilted the balance heavily against commercial activities by placing the burden on the operator to establish non-infringement before placing the hyperlink. However, even a not-for-profit website will infringe once it has actual or deemed knowledge of the infringement.”
The decision “makes all major news and media companies and all search engine operators…into potential mass infringers of copyright due to the provision of hyperlinks on their websites.”
The Hollywood Reporter has a statement from John McVay, chief executive for Pact, a UK-based trade association for independent film and TV, in which he says the ruling “confirms that making a profit from the work of others by providing links to copyrighted material without permission from the owners is illegal. Action against illegal sites is not about preventing access to movies, TV and content—rather it aims to stop pirates exploiting content that’s not theirs and ensures that users consume content in a safe environment, where they receive the best possible user experience.”