Court of Justice of the EU Rules on the Legality of Hyperlinking

BY Heather Greenfield
September 8, 2016

Brussels, BELGIUM — Today the Court of Justice of the EU (CJEU) delivered its judgment in the GS Media case (Case C-160/15). The case centered on the question whether hyperlinking to content that has been uploaded illegally constitutes a ‘communication to the public’ which is an exclusive right under EU copyright rules.

The case can be considered as a follow-up to the Svensson judgement (Case C-466/12) in which the Court ruled that hyperlinking to content that has been uploaded with the authorization of the rights owner does not fall under copyright.

In today’s judgment the Court seems to differentiate between users who cannot be assumed to know whether the rights owner gave consent to the online publication of his content and users who can be presumed to have such knowledge. Hyperlinking by the latter, especially when done in pursuit of a profit, can be considered as a communication to the public and hence can fall foul of copyright rules.

The following can be attributed to Jakob Kucharczyk, Director, CCIA Europe:

“This ruling confirms that hyperlinking and copyright will remain a very topical issue. While the European Commission is set to unveil its copyright package next week, this case shows that the freedom to hyperlink is under attack.”

“Copyright has to be protected online. However, the Court’s attempt to punish bad actors has made copyright law more complicated for everyone. In tune with the opinion of the Advocate General, we remain convinced that hyperlinks are better understood as mere road signs on our internet highways. They should have nothing to do with copyright law. The Court missed the opportunity to clarify that once and for all.”

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