The ECJ ruling of September 8, 2016 (C-160/15) already caused a great deal of incomprehension and annoyance. According to this ruling, website operators are not only liable for copyright infringements on their own website, but also for infringements on websites they link to.
The decision of the Regional Court of Hamburg on November 18 (case no. 310 O 402/16) is the first time that a German court has applied ECJ case law on copyright liability for hyperlinks. If the website operator acts with the intention of making a profit with regard to its website, it is subject to certain obligations in the opinion of the LG Hamburg. Among other things, he must ensure that the content of the linked pages does not infringe copyright.
Violation of Creative Commons license on third-party website
A website operator linked to a third-party website. This contained a copyright infringement: an image protected by Creative Commons licenses was edited by the operator but not sufficiently marked as edited. Due to this omission, the labeling no longer complied with the conditions of the CC licenses used and therefore constituted a copyright infringement.
As the hyperlink also makes the image accessible to a new audience, it constitutes its own public reproduction of the image, Section 19 a UrhG. If the link was created without the licensor’s consent, this leads to separate copyright liability for the linked pages – according to the judges at Hamburg District Court.
Liability for infringements on linked websites with the intention of making a profit
Copyright liability for linked pages is subject to very broad conditions and therefore affects a large number of website operators.
If the website owner operates the site with the intention of making a profit, he must check all linked sites for copyright infringements. In the opinion of the LG Hamburg
carry out the necessary checks to ensure that the work concerned has not been published on the linked page without authorization.
No positive knowledge of the copyright infringement is required. Rather, it is sufficient that the website operator has not fulfilled his reasonable duty to investigate in a manner for which he can be blamed. In doing so, he at least accepts an infringement. Both the Regional Court and the ECJ left it open as to what an investigation should look like in practice.
No obligation to permanently check linked pages
The answer to this question is particularly important in practice. Although the Hamburg Regional Court left this question unanswered, it is to be expected that the German courts will also follow the ECJ in this respect. The latter ruled in favor of website operators that a permanent review is not necessary. It is sufficient if the linked page is checked once before the website is published.
Scope currently (only) with the intention to make a profit
A step-by-step approach is still recommended before setting links. If a warning letter is received, the infringement must be carefully examined in each individual case; in particular, whether a link was placed with the intention of making a profit or – as the Hamburg Regional Court allows to suffice – whether a website is operated with the intention of making a profit. According to the current situation, there is still potential for argumentation here in order to be able to reject liability under copyright law.