The European Court of Justice (ECJ) is considering whether linking to copyright infringing content should itself be considered infringement. Melchior Wathelet, advocate-general to the ECJ, has ruled that simply linking to infringing content is not itself infringement. Although the ECJ has yet to make its own ruling on the matter, the court usually takes the advice of the advocate-general.
The case involves a dispute between Sanoma, which is the Dutch edition of Playboy, and a site called GeenStilj. Sanoma published photos of a Dutch TV personality, which were later posted on an Australian site without permission. GeenStilj then linked to the photos from the Australian site. Sanoma requested the removal of the links, but GeenStilj did not comply. The Australian site eventually removed the photos at the request of Sanoma. GeenStilj then linked to another site that was hosting the photos, which also took them down at the request of Sanoma. Eventually, users of the site made use of the forum to link to other sites that were hosting the photos.
Sanoma took GeenStilj to court, claiming that linking to the photos without permission is copyright infringement. The Dutch supreme court referred the case to the ECJ, because it was not sure how hyperlinks should be treated under the EU’s copyright directive. The ECJ’s ruling will set binding precedent across the entire EU.
Wathelet’s ruling states that linking to something simply makes a work easier to find, but it is not the same as making that work available to the public. Making a work available is necessary for it to be considered copyright infringement under the EU copyright directive. The ruling states, “hyperlinks which lead, even directly, to protected works are not ‘making them available’ to the public when they are already freely accessible on another website, and only serve to facilitate their discovery. The actual act of ‘making available’ is the action of the person who effected the initial communication. Consequently, hyperlinks which are placed on a website and which link to protected works that are freely accessible on another site cannot be classified as an ‘act of communication’ with in the meaning of the Directive.”