Linking and Copyright laws – changes afoot?

We thought it was all done and dusted when two years ago in the Svensson case the CJEU made it clear that merely linking to content is not copyright infringement. However in a new case that has been referred to the CJEU, it will examine if links to unauthorised versions of content is an infringement.

The Dutch Supreme Court has referred an interesting copyright battle to the ECJ which could have implications for us all and how the Internet works.

In 2012, a Dutch blog Geen Stijl (GS) published a post which contained unpublished pictures of Dutch reality star Britt Dekker for Playboy. Its publisher’s Sanoma took exception to the post as GS provided a hyperlink to the pictures via an Australian site.

The Amsterdam Court of Appeal found in GS’s favour but that the publication of the link was wrong because GS had induced the public to view the pictures.

Both parties lodged an appeal and the Dutch Supreme Court, asked a preliminary question, namely whether copyright is infringed by communicating to the public when a person refers, through a hyperlink, to a website WITHOUT the copyright holder’s consent.

The lawyer for GS stated “We lodged an appeal on behalf of Geen Stijl on a few grounds which was successful: the Court of Appeal had misapplied the ‘quotation’ exception in copyright law and did not sufficiently balance the freedom of speech versus copyright protection, as it indicated that ‘only in exceptional circumstances’ would the freedom of speech outweigh copyright protection, as freedom of speech concerns are taken into account in the law, in particular in the exceptions. The Supreme Court followed our reasoning that copyright is a fundamental right, but that the same goes for the freedom of speech, and that they thus should be considered on equal footing. The Court of Appeal should therefore have considered all relevant circumstances (among which is whether this is commercial speech or a news item) and not only exceptional circumstances. Never before has the freedom of speech been given so much weight in The Netherlands”.

We await news with interest.

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