I. General information
Date of Judgement: 08.8.2016
Issuing Authority: Court of Justice of the European Union (2nd Chamber), EU
Category: Copyright Infringement of AI training data
Plaintiff/Appellant: Sanoma Media Netherlands BV, Playboy Enterprises International Inc., and Britt Geertruida Dekker (the rights holders)Defendant/Respondent: GS Media BV (the operator of the GeenStijl website)
Keyworks: Hyperlink; copyright; infringement; Information Society Directive; ECJ
II. Dispute
Hyperlinks to infringing content may constitute copyright infringement.
The dispute arose between GS Media BV (the operator of the GeenStijl website) and Sanoma Media Netherlands BV, Playboy Enterprises International Inc., and Britt Geertruida Dekker (the rights holders).
Sanoma, the copyright holder of photographs of Britt Dekker taken for Playboy magazine, accused GS Media BV of copyright infringement for posting a hyperlink on the GeenStijl website, leading to another website containing photos not officially published by Playboy.
Sanoma requested the removal of these photos, but GS Media continued to post new links.
The central legal issue: Does posting a hyperlink to copyright-infringing content on another website constitute a "communication to the public" under Article 3(1) of Directive 2001/29/EC?
III. Legal basis
Directive 2001/29/EC of the European Parliament and of the Council on the harmonisation of certain aspects of copyright and related rights in the information society (Information Society Directive):
Article 3(1): Authors shall have the exclusive right to authorise or prohibit any communication to the public of their works, by wire or wireless means, including the making available of their works to the public in such a way that members of the public may access them from a place and at a time individually chosen by them.
Precedents from Svensson and Others (C-466/12) and BestWater (C-348/13): Posting a hyperlink is not always considered a "communication to the public."
IV. Judgement
The Court of Justice of the European Union (CJEU) concluded: Posting a hyperlink can be considered a "communication to the public" if the following conditions are met:
● Commercial purpose: If an organization operating for profit posts a hyperlink to copyright-infringing content, it can be presumed that the organization knows or should know about the illegal nature of the linked content.
● Knowledge of copyright infringement: If the party posting the hyperlink does not have a commercial purpose, they are only considered to be infringing if they know or can reasonably be presumed to know that the content infringes copyright.
● Broadening the public: If the hyperlink allows users to access content that was previously not easily accessible, this act may be considered a "communication to the public."
The Court emphasized that an individual or organization operating for profit has a duty to check whether the content they link to is legal. If they intentionally or negligently post a hyperlink leading to copyright-infringing content, they may be held legally responsible
V. Remarks
This case may be relevant to AI in the context of AI products and services that can generate or provide links to content, including copyrighted content. AI developers and deployers need to be aware of copyright issues when integrating linking functions or automatically generating content. If AI creates links to copyright-infringing content, or uses copyright-infringing content for training, similar legal issues may arise.
