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Are you infringing copyright with web links on your website?

GS Media BV v Sanoma Media Netherlands BV and others, Case-160/15

In order to avoid infringing copyright in posting a website link on your own website, it is important to note that you may not post these links for your financial gain.

The case above which was decided at the European Court of Justice (ECJ) has outlined the situations in which a breach in copyright can be avoided. It was noted that the website links were to protected works that were freely available on another website without the consent of the copyright holder and were communicated to the public within the meaning of the European Union Copyright Directive (the Directive).

Not only was it necessary to establish that the links were not posted in order to make a financial gain, but they must have been posted by a person who did not know or could not have known the illegal nature of positing the links. Adding links on your website to other websites or to locations is a feature most commercial users will engage in.

A prime example is from the case noted, here photographs to be published in Playboy Magazine were leaked on a hosting site without the publishers consent. GS Media which is a popular Dutch gossip blog published links to the location of the photographs. Sanoma, the publishers, requested the hosting site to remove the files which they did however by the time the pictures were taken down they had been added to other websites for which GS Media also posted links. The outcome of the ECJ’s decision gives clarity on the interpretation of the term “communication” within the Directive. The new rule is when the work is communicated by the same technical means as the initial communication, ie the internet, there is no infringement. A distinguishable difference was also made in links posted to copyright contents for non-commercial uses and commercial uses. Commercial uses are links to websites with copyright content protected by a pay-per-view so if your website has a link to a website with content which can only be viewed after payment, a financial gain is seen to be made. Commercial use can also be determined if the links are in an advertising capacity.

The most important point to note here is that where a financial gain is made the commercial site is presumed to be aware they are communicating links to copyright protected material, however if no financial gain is made there is a presumption that the person included the links to their website without knowledge that posting would be illegal.

For advice on your website and commercial use please contact Kevin Finlayson in our Employment, Commercial & Corporate team.