The thin line between copyrighted material and copyright infringement

The European Union (EU) Court of Justice’s ruling in GS Media BV v. Sanoma has caused a stir. The European Court Of Justice ruled that linking copyrighted material would not solely constitute to copyright infringement. Instead there had to be knowledge that those materials were copyrighted especially in the event that those works (with the accompanying link) was being published for profit.

Advocate General Melchior Wathelet provided his opinion on the case; he stated that the mere act of linking unlicensed content should not alone be enough of a reason to persecute the individual to infringement.

The ECJ has admitted that matter is complex by stating the following:

”Where it is established that such a person knew or ought to have known that the hyperlink he posted provides access to a work illegally published, for example owing to the fact that he was notified thereof by the copyright holders, the provision of that link constitutes a ‘communication to the public. When hyperlinks are posted for profit, it may be expected that the person who posted such a link should carry out the checks necessary to ensure that the work concerned is not illegally published. Therefore, it must be presumed that that posting has been done with the full knowledge of the protected nature of the work and of the possible lack of the copyright holder’s consent to publication on the internet.”

The beginning of the statement, ”ought to have know”, is largely directed towards professional publishers as they are expected to be aware of the legal provisions to be followed.

 

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