Brussels, 07/04/2016 (Agence Europe) - In his conclusions presented to the European Court of Justice on Thursday 7 April, the Advocate General Wathelet said that the posting of a hyperlink to a website which published photos without authorisation does not in itself constitute a copyright infringement.
The central question in this case (C-160/15) posed during the hearing of the appeal in cassation by the Dutch Supreme Court, is whether posting a hyperlink on a website that connects to another site where photos can be found is in itself a breach of copyright law. If it is, is it appropriate to establish whether the person that posted a hyperlink was aware that the third party website would make the photos available without authorisation?
Wathelet acknowledges that hyperlinks which lead, even directly, to protected works are not “making them available” to the public when they are already freely accessible on another website, and only serve to facilitate their discovery. Therefore, making them accessible on another site cannot be classified as an “act of communication” within the meaning of the Directive on copyright (2001/29/EC). Wathelet concluded that, consequently, the person that posted the hyperlink, irrespective of their reasons, cannot be held liable.
The Advocate General explained that the absence of this responsibility is therefore not brought into question even though this person knew that the photographs had been made public without the authorisation of the rights owner, on the condition that these photographs were already freely accessible on other websites to all Internet users. To justify his ruling, the Advocate General considers that, as a general rule, Internet users lack the knowledge and the means to verify whether the initial communication to the public of a protected work freely available on the Internet was done with or without the consent of the holder of the copyright.
The Advocate General explained he considered that "any other interpretation of that provision would significantly impair the functioning of the Internet and undermine one of the main objectives of Directive 2001/29, namely the development of the information society in Europe". (Original version in French by Jan Kordys)