Cross-border “illegal” linking: questions of localization and choice of law

Abstract

... In a series of decisions, notably Svensson1 and BestWater2, the Court of Justice of the European Union (CJEU) has found that linking to, or embedding of, protected works freely available on another website does not constitute a communication to the public within the meaning of Article 3(1) of the InfoSoc Directive.3 The logic on which these cases rested was that the initial communication in such a situation targets all potential visitors to the website. Users clicking on a hyperlink leading them directly to the website on which the works were initially communicated were therefore be deemed to be part of the public taken into account by the copyright holder when authorizing the initial communication.4 The focal question in GS Media5 was whether a different legal assessment was called for when linking to protected works which have been published without the consent of the copyright holder. The CJEU ruled that where, it is established that the person linking knew or ought to have known that the hyperlink provides access to a work illegally placed on the internet, the provision of that link constitutes a communication to the public.6 When the posting of hyperlinks is carried out for profit, however, the CJEU made an important distinction by finding that it can be expected that the person performing that post carries out the necessary checks to ensure that the work is not illegally published on the website to which such links lead. It is therefore presumed that the posting of hyperlinks in the pursuit of financial gain has occurred with the full knowledge of the protected nature of that work and possible lack of consent from the copyright holder.7