Europe's highest court is considering whether every hyperlink in a Web page should be checked for potentially linking to material that infringes copyright, before it can be used. Such a legal requirement would place an unreasonable burden on anyone who uses hyperlinks, thereby destroying the Web we know and love.
The current GS Media case examining hyperlinks builds on an earlier ruling by the European Union's Court of Justice (CJEU) in 2014. In that case, known as Svensson, the court decided that netizens didn't need a licence from the copyright holder to link to an article that had already been posted on the Internet, where previous permission had been granted by the copyright owner.
Although that was good news for the online world, it left open a related question: what would the situation be if the material that was linked to had not been posted with the copyright owner's permission? Would it still be legal under EU law to link to that pirated copy? Those are the issues that the latest CJEU case seeks to resolve for the whole of the 28-member-state bloc, and its 500 million citizens.
The Disruptive Competition Project has a good summary of the facts of the GS Media saga: "The defendant is a popular Dutch blog that posted links to photos meant for publication in the Dutch version of Playboy magazine, but which were leaked on an Australian server. No one knows who posted the photos to the Australian server, but everyone agrees that the blog only posted links to them." The details of how the case finally arrived at the CJEU are complicated, and explained well in a long post on the EU Law Radar blog.
Even if the facts are convoluted, a ruling that hyperlinks to unauthorised copies of material are themselves an infringement of copyright would clearly be disastrous for the online world. As the Disruptive Competition Project noted:
If the CJEU rules that every web user, in Europe and beyond, is expected to verify the copyright status of every item on a page before linking to that page, it could effectively destroy the web as we know it today.
Would you have to repeatedly check back on the sites you link to, in case the content on the site you linked to has changed? Would you need to confirm that their licences are all paid in full? Would you also have to verify the copyright status of links on the pages that you’re linking to?
Leaving aside the huge issue that ordinary Web users can hardly be expected to make expert calls on the copyright status of online material, the last question asked there is a particularly important one. If the answer is yes, it would mean that you would need to check the legality, not just of everything that you link to, but also of everything that those linked pages link to, and so on, until every single link that is linked in any way has had its licensing checked.
The manifest impossibility of doing so may well help the CJEU come to the common-sense decision that even though posting material without the owner's permission can be copyright infringement—and even then, it isn't always—providing a link to that infringing copy definitely isn't.
Listing image by Hernán Piñera
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