Links to protected works and copyright violation

The Court of Justice had already intervened in the pressing theme of the legitimacy of links in the lawsuit Svesson C-466/12 of February 13, 2014 and its decision raised some hope. Now it returns to the question clarifying some important aspects opening new scenarios. The decision – issued by the Court in 2014 – affirmed that it is not criminal to insert in a website the link of another website where there are works protected by copyright, published with the consent of the owner. In particular, it established that in accordance with Article 3 of Directive 2001/29, in this case there was not a new public disclosure since it was the owner himself who wanted to make his work available to an undetermined number of individuals. As a consequence, the new link did not change the situation. On the contrary, in the case taken into consideration by the Court of Justice, the link links to protected works which were published without the consent of the owner, for this reason it is not certain if it is possible to apply the Svesson decision to this case. The answer – submitted at the decision issued in the cause C-106/16 the 8th September 2016 – is negative. The Court of Justice points out that the Svesson judgment was limited to cases in which it was the owner will to publish the work online. The case is completely different if the works indicated by the link are published without the consent of the owner of the rights. To establish what could happen considering this different hypothesis it is necessary to distinguish if the website in which the link appears has financial gain or not. In case of a non-profit-making website, an inquiry aimed at understanding if the site operator could have known the unlawfulness of the material is required. If, on the one hand, the operator did not have the possibility to know about the unlawfulness of the linked material, the link cannot be considered criminal in accordance with the law concerning copyright. If, on the other hand, the operator might have known about it with ordinary diligence, the link has to be considered criminal. To this end, even having received a letter from the owner of the rights represents a presumption of knowledge. If the link is inserted in a profit-making website, since the one who exercises a business activity has the duty to check the lawfulness of the linked material and there is no possibility for him/her to refrain from it, there is always responsibility. With the judgment C-160/16 recurs the longstanding problem of the responsibility from links which had never been solved and is always more current.

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