Hyperlinking is an intrinsic part of the internet. Open nearly any website and you are likely to see hyperlinks to sites containing content created by someone other than the site’s author. What are the copyright implications of linking? European Union and US courts diverge on the answer to that question, despite being driven by similar fundamental concerns.

In September, the Court of Justice of the European Union (CJEU) issued a much-anticipated ruling concerning hyperlinking’s legality in GS Media v. Sanoma Media Netherlands and Others. It held that posting a hyperlink to a site where a copyrighted work is being displayed without the copyright owner’s consent does not necessarily violate the copyright owner’s right to authorise or prohibit any “communication to the public” under the EU’s directive on copyright and related rights in the information society, known as the InfoSoc Directive. Rather, a person posting such a hyperlink makes a communication to the public only where that person has knowledge that the site to which it linked did not have permission to display the copyrighted work. If the site providing the hyperlink did so for ‘financial gain’, it is presumed that it knew this fact. The presumption is rebuttable.

While GS Media acknowledges that the internet is “of particular importance to freedom of expression and of information” and that “hyperlinks contribute to its sound operation and to the exchange of opinions and information”, the decision has been criticised for potentially shaking the core of the internet and disrupting information flow. Most websites could be characterised as linking for financial gain. Their authors could be presumed to know they linked to a site with unauthorised content simply by placing a hyperlink, as the CJEU issued little guidance on when the presumption applies.

Jan-Mar 2017 issue

Baker & Hostetler LLP