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Hyperlinks to copyright-protected material are a risky business!

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Hyperlinks to copyright-protected material are a risky business!

Hyperlinks to copyright-protected material are a risky business!

This autumn, the Court of Justice of the European Union (the Court) issued an important ruling on copyright. The key players in this high-profile case were the website GeenStijl and the publisher Sanoma.

The rise of the Internet has created a range of problems for copyright owners, and the ‘old’ Dutch Copyright Act does not offer a made-to-measure answer to all the new issues. For example, it was not clear to what extent posting a hyperlink to copyright-protected material (such as photographs, videos or music) can be prohibited. It is an important issue, because some people believe that the functioning of the Internet would be put under pressure if posting a hyperlink were to be prohibited, and furthermore that links form part of the freedom of information and expression of opinion. The Court has now issued an interesting ruling on hyperlinks that boosts the position of the copyright owner.

A reminder of the background to that case of Sanoma vs the GeenStijl blog
GeenStijl posted hyperlinks on its website to photographs of Britt Dekker in Playboy magazine, even before these photographs appeared in Playboy. These photographs existed on third-party websites on which GeenStijl had no further involvement whatsoever. Sanoma, the publisher of Playboy, demanded that GeenStijl remove the hyperlinks, invoking its copyright of the photographs. GeenStijl did not cooperate, and a lengthy legal battle ensued.

What is the judgment of the Court?
On the basis of complex considerations, the Court has arrived at the judgment that posting a hyperlink to copyright-protected material is not permitted under certain conditions. The starting point is that the protected work is being published in the source to which the hyperlink leads, without permission from the copyright owner, and this situation alone gives rise to a dispute. Posting a hyperlink is deemed to be unlawful, among other things, if:

  • posting the link constitutes an ‘intervention’, or it boils down to the fact that the party posting the link reaches a new audience as the result of its actions, specifically an audience that the copyright owner was not targeting;
  • the party posting the hyperlink operates for gain;
  • it was or could have been clear to the party posting the hyperlink that the protected material had been made available without permission from the copyright owner.

In short, you cannot post links as you please. In consideration of these criteria, the actions of GeenStijl were considered to infringe upon the copyright of Sanoma.

In practice?
When posting a hyperlink on a professional website, you should ask yourself each time whether the content to which the link leads is protected, and whether the copyright owner has granted permission for the publication. This is not always easy; already many people will often feel that there is something wrong with what they are doing, certainly where photographs, videos or music are concerned.

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