Sites operators linking for profit must check for unauthorised content

The court held that commercial linking to unauthorised content is infringing, even when it is quite difficult to ascertain the infringing nature of the linked work. The court also considered the scope of “financial gain” for the purpose of presumed knowledge of unauthorised publication, finding it sufficient that the site (rather than the link itself) is provided for financial gain.

Background

The applicant photographed a public building. He uploaded the photograph to the Wikimedia Commons, a repository that makes public-domain and freely licensed educational content available, permitting publication under a creative commons licence.

The photograph was then modified by an unknown third party, who added images of UFOs above the building. This new photograph was uploaded on the third party’s website.

The respondent operates a website that sells educational materials. On his site the respondent posted a sentence including the word “UFO”, which was linked to the modified version of the applicant’s photograph.  The applicant applied for an injunction against the respondent.

Decision

The court held that linking is only infringing where an individual knowingly or negligently links to an infringing work, noting that, if the link is provided for financial gain, there is a rebuttable presumption that such knowledge exists.

The court went on to consider whether the specific link must be provided for financial gain, or whether merely providing the link on a site operated for financial gain is sufficient. The Hamburg court considered that the criterion should be applied in the latter sense in this case.

Accordingly, the court concluded that the respondent had infringed the applicant’s right of communication to the public by making the modified version of the work available to the public via the link on its website.

Comment

The Hamburg court concluded that the operator of a commercial website should reasonably be expected to make the necessary enquiries and checks for any links to content from its website.

Clearly, rights-holders will welcome that need for scrutiny. By contrast, site operators may well see that as an unworkably heavy burden, and this decision does not set any clear limit on how far site operators should investigate the lawfulness of linked content.  The CJEU criterion requires actual or constructive knowledge, which might, on the face of it, be taken to suggest a more laissez-faire attitude, giving site operators the benefit of the doubt when they do not know, or had no relatively obvious reason to believe, that the linked content was posted without authorisation.

But perhaps that sort of constructive knowledge was engaged on the facts. The respondent was actually aware of the GS Media decision, but he did not think the burden would be on him to make the necessary enquiries with the operator of the third-party site to establish whether the necessary clearance had been obtained.  He added that making any such enquiries would contravene his fundamental rights.  The respondent’s argument did not convince the court, however, as the CJEU decision had weighed up the need to balance site operators’ fundamental rights.  For the Hamburg court, this showed that he recklessly accepted the possibility that the work might be unlawful.

And that could be a tough Hamburger for site operators to chew.

To read the full article, click here.  Article written for Entertainment Law Review.