After two months of deliberation, the European Court of Justice (ECJ) has ruled on whether including a hyperlink on a website without permission from the original copyright holder can be deemed as being copyright infringement. In a decision, released on Thursday (7th April), the ECJ’s Advocate General has advised the court that hyperlinks merely “facilitate [the] discovery” of publicly available material and, as such, should be exempted from the European Copyright Directive.
The issue first arose in 2011, after Dutch website GeenStijl.nl was accused by publisher Sanoma of linking to online content from the Playboy website without permission in a Dutch court. The Dutch court escalated the matter to the ECJ to determine whether Sanoma had a case for copyright infringement under Article 3(1) of the Copyright Directive of the Copyright Directive.
“[H]yperlinks 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,” the Advocate General wrote in his advice to the ECJ.
“The actual act of ‘making available’ is the action of the person who effected the initial communication. Consequently, hyperlinks which are placed on a website and which link to protected works that are freely accessible on another site cannot be classified as an ‘act of communication’ within the meaning of the Directive,” the Advocate General explains. “In fact, the intervention of the owner of the site which places the hyperlink, in this case GS Media, is not indispensable to the photos in question being made available to internet users, including those who visit GeenStijl’s website.”
While the ECJ is yet to make its final ruling, it expected to follow the determination made by the Advocate General.