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Linking To Pirated Content Not Copyright Infringement, EU Court Advised

Posted by: , 14:42 AEST, Sat April 9, 2016

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EU Court advisory notes that linking isn't the same as uploading
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Image/Photo Credit: Sam Howzit @ Flickr, CC

In the latest non binding interpretation of EU copyright law, as advised by European Court of Justice's advocate general, linking to pirated content in itself may not constitute copyright infringement.

Making an advisory opinion in case involving Dutch website GeenStijl.nl and Playboy, EU Advocate General Melchior Wathelet says that linking to pirated works, even directly linking to it, is not necessarily the same as "making them available".

The case involves the linking to of pictures taken originally by Playboy and published without authorization on a third party website. GeenStijl.nl linked to these, although the site did not directly host or upload them.

While Wathelet does agree that such linking would be helping users to find pirated content, to "facilitate their discovery", such linking cannot be considered copyright infringement because the content is already available publicly, with or without intervention from GeenStijl.nl.

"... hyperlinks which lead, even directly, to protected works are not 'making them available' to the public when they are already freely accessible on another website, and only serve to facilitate their discovery," the advisory reads.

"The actual act of 'making available' is the action of the person who effected the initial communication. Consequently, hyperlinks which are placed on a website and which link to protected works that are freely accessible on another site cannot be classified as an 'act of communication' within the meaning of the Directive."

The Court was also at pains to note that the advisory opinion only affects this particular case, and that the nature and main purpose of the website (that is, whether the site's main purpose is to provide pirated content) will need to be taken into affect when considering the legal status of the hyperlinking.


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