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Hyperlinks – the saga continues (Brands & IP Newsnotes - issue 3)

24 October 2016

The CJEU has issued another judgment on copyright infringement and hyperlinking; this time in relation to linking to unauthorised content.

The defendant had posted hyperlinks to other websites featuring pictures of a scantily clad Britt Dekker. The pictures had originally been taken for Playboy but ended up on a website without Playboy’s consent.

The CJEU was asked by the referring court (in the Netherlands) to rule on whether or not the posting of a hyperlink to another website (that was freely available to the public) containing copyright material that had been made available without the consent of the copyright owner constituted a ‘communication to the public’ and therefore infringed the owner’s rights.

  • In an attempt to avoid breaking the internet whilst still protecting rights owners, the CJEU ruled that:
  • Posting a link to third party content made freely available on the internet with its owner’s consent will not infringe the owner’s copyright;
  • If the third party content is on the internet without the owner’s consent and the person providing the link knows or ought to know that the material they are linking to is infringing then this may be an infringement of the owner’s copyright;
  • There is a presumption that when the posting of the link is carried out for profit, the person providing the link knew the content was there illegally (and so the link may be an infringement of the owner’s copyright); and
  • Once the rights holder has notified the poster that the link leads to unauthorised content, the poster will be on notice and infringing copyright if they fail to remove the link.

In a creative but welcome interpretation of the law, the Court appears to have effectively introduced a takedown procedure for hyperlinks. Doubtless there will be further referrals on this issue.

This article was first published in the Brands & IP newsnotes publication - issue 3

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Hyperlinks – the saga continues (Brands & IP Newsnotes - issue 3)

24 October 2016

The CJEU has issued another judgment on copyright infringement and hyperlinking; this time in relation to linking to unauthorised content.

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