On September 8, 2016, the ECJ issued its widely anticipated ruling in case C-160/15. Many had hoped that the ECJ would consider linking/hyperlinking to be completely unproblematic. This was particularly expected after the framing decision (21.10.2014 – C-348/13) and the Advocate General’s opinion.
According to the Advocate General, it is irrelevant whether the person placing the link is aware of the infringement or not. However, the judges of the ECJ disagreed. And in doing so, they caused a medium-sized outrage on the Internet.
To be honest, we didn’t feel any differently the first time we read it. But we took our time to form an opinion and on a second reading the verdict is perhaps even a necessary middle ground.
The facts in brief: Sanoma wanted to prohibit linking
The media group “Sanoma” is behind Playboy magazine and had nude photos of a celebrity taken on Lanzarote. These pictures found their way onto various websites before being published in Playboy.
The blog geenstijl.nl linked to these images and did not remove the links even after being requested to do so, but instead added further links. A lengthy legal dispute ensued.
ECJ on framing
Remember: if the work in question is not reproduced for a new audience or using a specific technical process that differs from that of the original reproduction, there is no copyright infringement when using the framing technique. This was clarified by the ECJ in 2014 (C-348/13).
However, the reasons for the decision and the word “alone” in the operative part were often overlooked. The ECJ had only wanted to comment on the setting of hyperlinks to works that had been made freely accessible on another website with the permission of the rights holder. The core issue was that the author must still be able to control the (lawful) distribution of his work.
This was also recognized by the BGH (judgement of 09.07.2015 – I ZR 46/12) and ruled accordingly. Illegal use and therefore copyright infringement could therefore also be present in the case of framing according to previous case law.
ECJ: Linking still permitted – with restrictions for commercial purposes
In the new decision on linking (C-160/15), the ECJ was faced with a dilemma and had to clarify its previous case law. Should it reduce protection for authors or impose restrictions on the design and use of the internet? The judges chose a middle way and set an example in favor of authors and pretty much every private individual. On the other hand, they created an increased need for examination for link setters with the intention of making a profit.
If the person who sets a link acts without the “intention of making a profit”, they are initially not liable for any link set. This also applies regardless of whether a work on the website to which the hyperlinks lead was published without authorization. It cannot be assumed in favor of the link setter that he deliberately promotes the copyright infringement. Only if it is “proven” that the link provider knows or could have known of the infringement must a review be carried out and, in case of doubt, the link removed.
It only becomes really critical when links are created with the intention of making a profit or for commercial purposes. In such cases
the person who has placed them can be expected to carry out the necessary checks to ensure that the work concerned has not been published without authorization on the website to which the hyperlinks lead, so that it can be assumed that such placing of hyperlinks was carried out in full knowledge of the protected nature of the work and the possible lack of permission from the copyright holder to publish it on the Internet.
This rebuttable presumption imposes a fairly heavy burden of proof on the link setter when acting with the intention of making a profit.
Problem: When a link is set with the intention of making a profit
It can be criticized that the ECJ uses the open term “intention to make a profit”, which is subject to interpretation. This is because the term is naturally somewhat vague. In addition, more than one interpretation of the ruling is possible. And this may be where the real confusion arises.
On the one hand, the ECJ equates “profit-making intentions” with “profit-making purposes” (see para. 38, 53, 54 in the judgment) – in any case, this interpretation is probably very obvious, as the profit-making purpose has already been the subject of previous proceedings (see also ECJ, judgment of 04.10.2011 – Joined Cases C-403/08 and C-429/08 para. 204 f.; see ECJ, judgment of 07.12.2006 – C-306/05; see ECJ, judgment of 07.03.2013 – C-607/11). And because the ECJ has already ruled sufficiently often on the existence of a “purpose of acquisition”, it has not elaborated further on this in the present judgment.
In any case, this interpretation poses the same “problem” as in many other places. In Section 45a UrhG or Section 58 UrhG, for example, the lack of a profit motive is even a constituent element.
On the other hand, a different interpretation would also be possible. The ECJ further emphasizes that it is not irrelevant whether there is an intention to make a profit. However, in order to be able to assume an infringement of copyright, the (stricter) intention to make a profit must be present (however, the ECJ, judgment of 07.12.2006 – C-306/05 para. 44, 47: profit-making purpose is sufficient).
Either way, whether there is an intention to make a profit or a profit-making purpose must of course be examined on a case-by-case basis. But when is a case clear-cut and not an individual decision? In this respect, harsh criticism is relatively misguided here.
Problem: When you should have known about the copyright infringement before setting the link
Perhaps another point of criticism is also interesting to be examined more closely. For when is it actually “proven” that someone “should have known” of the copyright infringement? Finding the right standard here may well keep the courts busy for a few more days.
In any case, there is no presumption against the link setter in this case – as long as he acts without the intention of making a profit. The ECJ has thus left a small loophole open for many internet users, in particular to make warning letters unattractive to them or at least to limit them. This is because the rights holder issuing the warning bears the risk of proving knowledge of the link setter.
No obligation to constantly monitor third-party websites after linking
The ECJ does not require a permanent review of the content of a third-party website. If a link is set and a copyright infringement is only committed on the linked website at a later date, it is not (yet) apparent that the link setter should be liable according to the ruling.
However, it is still different if the link setter is notified of an alleged copyright infringement. Subsequently, the link should be removed in case of doubt.
Disclaimer as a stumbling block
As an aside, a small note should be made here. Many website operators – even non-commercial ones – still use so-called disclaimers. On the one hand, these are generally completely useless and sometimes questionable in terms of competition law. On the other hand, following the ECJ ruling, disclaimers now harbor a further, increased risk of warnings.
Because you often read the following (or similar) as a general reference to websites:
Our website contains links to external third-party websites over whose content we have no influence. […] The linked pages were checked for possible legal violations at the time of linking.
However, if there was a copyright infringement and the link was allegedly checked, the author of this disclaimer has probably tripped himself up. Because then it is almost clearly “proven” that he should have known about the infringement or at least could have discovered it by asking.
In any case, the problem exists if the above-mentioned presumption to his detriment does not already exist and this was only confirmed by the disclaimer.
Press freedom restricted – or is it?
In many places, it is also claimed that freedom of the press is in danger. But is that really the case? The press has always enjoyed a high level of protection under fundamental rights – and there is no question that this must be the case.
But first you have to keep in mind which case the ECJ had as a factual basis: an online blog provokes by (repeatedly) linking to copyrighted material. It is therefore a case of blunt (commercial) exploitation of the reader’s interest in seeing the Playboy photos before publication.
The question that the ECJ had to ask itself was therefore relatively simple: does such behavior need to be protected? The ECJ rightly said no. Of course, there is a certain amount of effort involved if, as a result of the ruling, you are no longer allowed to blindly link to websites on which copyrights are being infringed. But there was no room for discussion in the context of press law because freedom of the press was not or could not be discussed – unless you want to classify every more or less commercial blog as press, which has always been a hot potato.
Justified criticism may be voiced to the effect that the ECJ’s ruling assigns a very high value to copyrights in a relatively sweeping manner. However, if the ECJ really wanted to place copyright above the freedom of the press in such a sweeping manner, it would certainly have expressed this. And that is what (we) lack. We cannot see any danger to the freedom of the press as a result of this ruling, as it concerned a different factual and legal discussion.
There would certainly have been other ways, but the solution is clearly defined and, apart from minor demarcation difficulties, provides much more legal certainty than before.
Conclusion: Step-by-step procedure before linking
In future, therefore, links should not be placed as carelessly as they have been in the past. The following is particularly relevant: Do I know about a copyright infringement? Do I have to investigate?
- When acting with the intention of making a profit: If there are any doubts, have I fulfilled my duty and traced the authorship back to the author? Documentation is recommended here!
- When acting without the intention of making a profit: Do I as the link setter even want to know? In any case, the link should be checked and removed if necessary!
- Problem case: Should I have known about the infringement? If an infringement is obvious, you should also refrain from setting links!