The EU InfoSoc Directive provides for the exclusive right to communicate works to the public. In this blog, Deirdre Moynihan takes a look at how the rules were applied to hyperlinks.
Article 3 of the EU Information Society Directive (‘InfoSoc Directive‘) grants rightholders the exclusive right to authorize or prohibit any communication to the public of their works. This right and the scope of Article 3 have been the subject of a large number of cases which are not all reconcilable. A comprehensive overview and analysis of all Article 3 jurisprudence is beyond the scope of this section; rather, our intention is to focus exclusively on the relationship between Article 3 of the InfoSoc Directive and the dissemination of copyrighted works via hyperlinks.
The structure and use of the Internet has made it much easier to share content in different forms (including copyrighted works) between 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 or approval from the content owner. The open and authorized functionality inherent in the Internet is therefore often at odds with aspects of copyright law that control the exploitation of copyrighted works. This tension led the CJEU to examine whether the provision / sharing of a hyperlink constitutes an infringement of copyright under Article 3 of the InfoSoc Directive on the grounds that the provision of the hyperlink hinders the ability of the rights holder to control the communication of relevant works to the Public.
At first glance, it is difficult to envision scenarios where sharing a hyperlink results in copyright infringement. – hyperlinks are primarily functional in nature and simply make it easier to navigate the internet in a more direct and efficient manner by specifically directing the user to the content they need without needing to visit other areas of the website first ( or in some cases the link avoids the need to login or subscribe). It is this functional aspect of hyperlinks that comes up against the ability of the right holder to control the communication of his works to the public – Internet users who share hyperlinks are also “communicating” content.
Elements of infringement of the right of communication to the public
There are 2 elements to the offense: (1) a communication and (2) this communication is made to a “public”.
It is permitted to share content already made available free of charge by the rights holder via a hypertext link if the “audience” to which the original content was made available does not change or is not “new”, however, the responsibility for making the content available via a hyperlink will arise in the following circumstances:
- the content shared via the hyperlink is made available to a ‘new’ audience that is not from the perspective of the rights holder when the original distribution / making available has taken place (e.g. the content made available to a limited group is communicated outside that group without consent);
- the hyperlink refers to paid content or to content that is otherwise generally not available / accessible and the hyperlink avoids the need to purchase a subscription to the shared content; Where
- the hyperlink refers to content illegally posted online and the hyperlink was aware (or should have been aware) of this illegality.
In addition to the nature of the content and the audience, a key element of the analysis concerns the status of the hyperlink: if the hyperlink making the hypertext content available does so for commercial purposes, it is presumed to have knowledge of the content. infringing whereas if the “links are provided without seeking financial gain by a person who did not know or could not reasonably have known of the illegal nature of the publication”, no infringement will be deemed to have taken place.
It is therefore essential to establish whether the hyperlink seeks financial gain, although it is not clear what level of “financial gain” is required to trigger the presumption of infringement – it is an open question whether the threshold requires whether direct income arises from the act of hyperlinking or simply requires that the hyperlink be a revenue-generating business.
If the hyperlink posting is for financial gain, then:
“It can be expected that the person who set up such a link will carry out the necessary checks to ensure that the work concerned is not illegally published on the website to which these hypertext links lead, so that it must be presumed that this posting took place with full knowledge of the protected nature of this work and of the possible absence of consent to publication on the Internet by the copyright holder. In such circumstances, and provided that this rebuttable presumption is not rebutted, the fact of setting up a hypertext link to a work illegally placed on the Internet constitutes a “communication to the public” within the meaning of Article 3, paragraph 1, of [the InfoSoc Directive]. “
For-profit companies that share content via hyperlinks will need to rebut the presumption of infringement by demonstrating that they have carried out checks to ensure that the linked content is not infringing – these checks may look like “filters. download ”envisaged by the new DSM directive, revising the general conditions published and the declarations of reservation of rights on the linked content, supplemented by a notice and takedown procedure which allows the rightholders to inform the hyperlink of the nature infringing related content.
The DSM directive – Press publications and OCSSP.
- Press publications: Article 15 of the DSM Directive on the EU’s Digital Single Market (‘DSM Directive‘) confers new rights on 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 may license a license to use their publications online to information service providers. The new right is intended to allow news publishers to recoup the investment in the content they make available, which has historically been shared by aggregators and media watchdogs for profit without any payment to l original press editor. There is no impact on existing defenses and exceptions to copyright infringement and the new law does not apply to “acts of hyperlink creation” (although what constitutes an act of creation hyperlinks is not defined).
- Content providers and download filters: DSM Directive adds additional complexity for a limited group of content providers – online content sharing service providers (‘OCSSP‘) will be responsible for the publication of protected works unless the rights holder has granted a license to the OCSSP to do so. OCSSPs will no longer be able to rely on the safe harbor for hosts provided for by the Directive on electronic commerce in the context of a potentially profound change in existing law and established practice: if no license / authorization is is granted by the copyright owner, an OCSSP will be liable unless they can prove that (a) they did their best to obtain permission, and (b) did their best to remove the infringing content after notification of the rights holder and (c) have acted promptly, after receiving a sufficiently reasoned notification from a rights holder to deactivate access to, or remove from their websites the copyrighted works, and have done their best to prevent their future downloads.
Whereas previously rights holders focused on removing providers of peer-to-peer networks designed to make protected content illegally available online, other users of copyrighted material are now at risk of copyright infringement. author simply by creating hyperlinks to third-party content. It is therefore essential for any business that shares third-party content to assess the potential risk of copyright infringement in the context of hyperlink cases and the new DSM Directive and to consider what action it can take. to reduce / remove liability. It is also important that companies operating under hyperlink and DSM cases continue to monitor ongoing discussions and cases before the CJEU – this is a complex and nuanced legal area that requires detailed analysis and examination to form a picture of an illegal communication to the public of a copyrighted 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