A hyperlink on a website that links to copyrighted material and does not have the rights holder’s consent may be allowable [clarified] if for non-commercial purposes, the Court of Justice of the European Union said today. But it may infringe copyright if linked for profit and with knowledge of the lack of permission to link it, it said.
The CJEU press release on the decision is available here [pdf]. The decision itself is available here.
“The posting of a hyperlink on a website to works protected by copyright and published without the author’s consent on another website does not constitute a ‘communication to the public’ when the person who posts that link does not seek financial gain and acts without knowledge that those works have been published illegally,” the CJEU release summarises. “In contrast, if those hyperlinks are provided for profit, knowledge of the illegality of the publication on the other website must be presumed.”
The case involved a company called GS Media in 2011 linking to copyrighted Playboy photographs of a woman named Britt Dekker that had been posted to an Australian website without permission. After the Australian site took the photos down, GS Media linked to another site that posted them until that one also took them down. Then visitors to the GS Media site posted links to other sites where the photos could be found. GS Media was sued for copyright infringement by the editor of Playboy.
The Computer and Communications Industry Association (CCIA), a tech industry group, said the decision adds complication to copyright online. In its statement it said:
“Copyright has to be protected online. However, the Court’s attempt to punish bad actors has made copyright law more complicated for everyone. In tune with the opinion of the Advocate General, we remain convinced that hyperlinks are better understood as mere road signs on our Internet highways. They should have nothing to do with copyright law. The Court missed the opportunity to clarify that once and for all.”
Your first sentence is wrong. Linking is not OK just because it is non-commercial.
[…] Hyperlinking copyrighted content for commercial purposes without owner’s consent constitutes infri… […]
To clarify: the Court said that a link is a communication to the public if the poster knew or had reasonable grounds to know that it made a work available without licence. If the link was posted in the course of commercial activity, that knowledge is presumed.