Linking on the Internet and copyrights
Sending links on social media or posting them on a website is a popular way to share content with friends, but it is also often part of a marketing or advertising campaign. Therefore, the question arises whether linking content protected by copyright is legal? Is linking songs making them available to the public? You can find the answer to these and many other linking questions in the article below!
What is a work to be made available to the public?
Pursuant to Art. 3 sec. 1 of Directive 2001/29 / EC on the harmonization of certain aspects of copyright and related rights in the information society, authors should have the exclusive right to authorize or prohibit any communication of their works to the public, by wire or wireless means, including making their works publicly available in such a way, that outsiders have access to them at a place and time of their choice. Under EU law, the author has the exclusive right to make his works available to the public. The concept of communication to the public appears in the Directive 2001/29 / EC regulating this issue. However, it is in vain to look for a definition of this concept there. On the other hand, the Court of Justice of the European Union has repeatedly commented on its significance.
According to the CJEU, the concept of "making available to the public" combines two cumulative elements, namely the "act of making available" the work and making it available to "the public" (judgments: of March 16, 2017, AKM, C ‑ 138/16, EU: C: 2017: 218, paragraph 22; of 7 August 2018, Renckhoff, C ‑ 161/17, EU: C: 2018: 634, paragraph 19 and the case-law cited there; 19 December 2019, Nederlands Uitgeversverbond et Groep Algemene Uitgevers, C ‑ 263/18, EU: C: 2019: 1111, paragraph 61 and the case-law cited).
At the same time, the CJEU clearly emphasizes that the following should be considered as primary: "(…) The role of the user and the intended nature of his activity. This is because the user performs "sharing activities" when he takes actions - with full awareness of their consequences - in order to grant his clients access to the protected work, in particular in a situation where, in the absence of such actions, these clients would not be able to use the disseminated work or use it would be difficult"(Judgment of the Court of Justice of 2 April 2020, C-753/18).
Therefore, the concept of communication to the public will consist of:
- the act of making the work available;
- knowingly disclosing, without which the public would not have access to the work;
- making the work available to the public;
- novelty to the public to whom the work is made available.
Linking in the Internet and copyrights - legality of sharing
Among the various linking methods, we can distinguish those that involve embedding specific content on the website and those that only redirect after clicking on the link to the source. In the first case, we may not even know that we are dealing with linking and not a permanent element of the website. In the second, it is clear to the recipient that there is a linking - redirection. In addition, links on a website can be embedded using a variety of techniques, including but not limited to framing - consisting in placing content in a frame.
While examining the specificity of linking and its legality, the CJEU stated that: "The mere fact that a protected work, freely available on a website, was placed on another website by means of a link using the "framing" technique [...] cannot be classified as "communication to the public" within the meaning of Art. 3 sec. 1 of Directive [...] to the extent that the work in question is neither transmitted to new recipients nor transmitted under a specific technical procedure other than that of the original transmission”(Order of the Court of Justice of 21 October 2014, C-348/13).
Therefore, in the view of the CJEU, the linking technique is not decisive for the legality of linking and even links embedding content directly on the page may be legal if the work is not thus made available to a new public. In order to talk about making a work available to the public within the meaning of the directive by linking it, it is necessary that it reaches new audiences in this way.
Reference to publicly available content
However, in the context of publishing the work to the public via linking, a lot of doubts arose. One of them was whether linking publicly available content on the Internet infringes the copyrights of the authors of this content? This problem was dealt with by the EU tribunal.
According to the CJEU, for a work to be made available to the public within the meaning of Directive 2001/29 / EC, additional conditions must also be met in specific circumstances. In the case of linking, it is required that the sharing of works should refer to: "[...] of the same works as originally shared on the Internet, similar to the original release, i.e. based on the same technology, was directed to a new audience, i.e. the audience that was not taken into account by the rightholders when they allowed initial release to the public”(Judgment of the Court of Justice of 13 February 2014, C-466/12).
Therefore, the CJEU ruled that: "[...] does not constitute an act of communication to the public within the meaning of this provision, the provision on a website of clickable links referring to protected works publicly available on another website”(Judgment of the Court of Justice of 13 February 2014, C-466/12). Linking a publicly available work is without prejudice to the Directive. In the opinion of the Tribunal, linking to generally available works does not infringe EU regulations and does not constitute an infringement of the copyright of the authors of the linked content, because the condition of the so-called "New audience". Start a free 30-day trial period with no strings attached!
Linking on the Internet and copyrights - profit-making goals
The Tribunal also assessed the issue of linking for profit, which may be important for linking as part of marketing or advertising campaigns.
In this context, the CJEU noted, inter alia, that: "[...] where the posting of a hyperlink is made for commercial purposes, the party making the posting can be expected to carry out the necessary checks to ensure that the work in question has not been unlawfully posted on the site to which the hyperlinks refer, and therefore it may be presumed that the posting was made with full knowledge that the said work is protected and with the awareness of the possible lack of authorization of the copyright holder for publication on the Internet. In those circumstances, and unless that rebuttable presumption is rebutted, the act of including a hyperlink to a work unlawfully published on the Internet must be regarded as constituting "communication to the public" within the meaning of Art. 3 sec. 1 of Directive 2001/29”(Judgment of the Court of Justice of 8 September 2016, C-160/15). Linking for non-profit purposes is legal if the linking party did not know or could not reasonably have known that it was illegal. The CJEU therefore introduced a de facto presumption that in the event of linking for commercial purposes, the entrepreneur knows whether the work is protected and whether it can be legally linked. At the same time, non-profit linking is not made publicly available when the linking person did not know or could not reasonably know about the illegal nature of their activity.
