A top lawyer with the European Court notes that posting a link to a website that publishes copyrighted photos without their owners' approval does not set itself for infringement.
The legal advisor affirms that having a hyperlink to copyrighted content on your webpage does not qualify the third-party page that hosts the link as infringing upon copyright law.
Although the EU states that distribution of copyrighted work must take place only with the consent of the work's author, the advocate general clarified that the Internet would suffer greatly, should the hyperlinks follow the same rules as real-life advertising of copyrighting content.
The case originated in the Netherlands, after the GeenStijl webpage offered its readers a link to an Australian site which showed photos of a Dutch celebrity. The images were captured by the Playboy magazine, and the Australian website did not ask Playboy's consent to publish the photos.
The EU Court decision is pending as the legal issue between GeenStijl and Playboy's publisher is underway.
The next step that the EU Court of Justice must take is to decide if these hyperlinks qualify as "communication to the public" or not, and the decision will impact the copyright infringement charges.
The Dutch site made the leaked photos available via links to file-sharing service FileFactory. As Sanoma, the publishing company of Playboy found out and took down the FileFactory hyperlinks, GeenStijl simply replaced them by linking to a different source.
"The posting of the hyperlinks in the main proceedings does not, in my view, constitute a 'communication to the public'," Advocate General Melchior Wathelet points out in his advisory.
He went on to add that a different interpretation "would significantly impair the functioning of the Internet." Wathelet further affirms that one of the main objectives of EU's Directive 2001/29, which regards the development of a European society based on information and transparency, would have to suffer from a different interpretation of the copyright law.
It should be noted that Wathelet's decision does not bind the court, and there are still proceedings in place until the lawsuit reaches its end. However, European courts tend to pay heed to the Advocate General's opinion on these matters.
Europe has seen legal hassles over copyright laws regarding visual content before, and you can read all about it in our coverage.
