Hyperlinks to protected works might be illegal

The Court of Justice of the European Union (CJEU) established criteria for legality of links to protected works that are freely accessible in other websites without the consent of the copyright holder. This CJEU judgment filled in a vacuum in the case law that existed until the CJEU clarified criteria for determining liability of persons who make hyperlinks to websites with illegal content. Before that, the CJEU had formulated another rule finding no infringement in the provision on any website of links to works that are freely accessible (subject to the consent of the copyright holder) on another website.

Commercial aspect of hyperlinks

The CJEU emphasises that, first and foremost, it needs to be clarified whether the hyperlinks seek any commercial purpose. If the purpose is of the commercial nature, it is assumed that the person who provided the link was or should have been aware that works available on another website were published without the required consent. In this case, in order to avoid liability, the person who made the link will have to prove that he was not and could not have been aware that the copyrighted content was protected and published without the consent of the copyright holder. Such unawareness could be proved, for instance, by presenting evidence that the person who published the copyrighted content on the web illegally confirmed his right to make the copyrighted content publicly available.

Conversely, if no commercial purpose is pursued by making links, the person attempting to prove the infringement will have to produce evidence that the person who made the hyperlink was aware or could not have been unaware of its illegality. Such evidence could be a warning by the copyright holder to the person making the hyperlink about the infringement of rights.

What does this CJEU judgment suggest in practice?

Before making a hyperlink to any copyrighted content on his website or social network profile, each entrepreneur will have to satisfy himself that the copyrighted content is published with the consent of the copyright holder. For example, a travel agency, intending to share on its Facebook profile a hyperlink to a video available on another website and inviting to visit any island, should make sure that the video has been published with the consent of the copyright holder.

Liability for hyperlinks to an illegal content

If it was recognised that hyperlinks to a content freely available on another website have been made without the required consent, the copyright holder would have the right to claim damages. Further, the Code of Administrative Offences provides a penalty for the infringement of copyright in the amount of EUR 289 to 579.

Asta Macijauskienė, Senior Associate, law firm GLIMSTEDT

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