26 Sep Playboy – copyright in the digital age

In the Summer 2016 main issue of zoom-in we reported on an ongoing copyright case involving the publisher of Dutch Playboy. Playboy took action against a website called GeenStijl which had posted links to a website where free Playboy images of Dutch TV presenter Britt Dekker could be found.

The Dutch courts referred the case to the Court of Justice of the European Union. This summer that Advocate General (a legal advisor to the court) published his opinion on the matter, as we reported. However, the court is not bound to follow his opinion and in a judgment this September it took a different approach.

The court acknowledged that it may be difficult for individuals who post links to know whether or not the material was originally published with the consent of the copyright holder. However, it said that if the hyperlinker “knew or ought to have known” that the copyright holder had not consented to the original publication of the work online, then it would amount to a “communication to the public” and therefore an infringement of copyright.

Where a hyperlink is posted “for profit” the hyperlinker is expected to have carried out the “necessary checks” as to whether or not the copyright holder has consented. So where a copyright holder did not consent, there is a presumption that the for profit hyperlinker knew that. The court did not specify what these “necessary checks” consist of.

In this particular case it is clear that by the time legal action was initiated, the Defendant did know that Playboy did not consent to the photographs being posted on the internet. However, there will be many situations where the position is not so clear-cut.

For copyright owners the case boosts protection where a website is linking to material which has leaked or which otherwise have been made available to the public without their consent.

However, it presents difficulties for those posting hyperlinks who might be considered to be doing so for profit. “For profit” was not defined by the court. Clearly those running commercial websites deliberately linking to copyright-infringing material will be caught. But those running business websites, or websites which make money from advertising revenue may be covered, even though it is not the links themselves that generate any income.

As “necessary checks” are not defined, it is not clear exactly what hyperlinkers should in practice do and how they might rebut the presumption that they knew the material was posted without consent. In some cases, it will be reasonably clear whether something has been posted by, or with the permission of, the copyright owner. In other cases it will not be clear and hyperlinkers should use caution. Readers of zoom-in may well find themselves in a position where they both benefit from the decision in this case, in terms of their own created material, but at the same time need to exercise more care in relation to links to third party material posted on their websites.

In a separate case, the CJEU considered “framing” of material on websites. This is where, for example, a link to a video is placed on a website, which when clicked plays the video without taking the viewer to a separate website. It is often used to embed YouTube videos onto a webpage.

In this case the court decided that framing did not infringe copyright, even where the copyright holder did not consent to the material appearing on the page on which it has been framed. This applies as long as the material has previously been made freely and lawfully available to the public. This is because there will not be communication to a “new public” i.e. one which the copyright holder did not envisage having access to the material when it was originally posted online with his or her consent.

The position therefore appears to be this: it would not be an infringement to frame a video which had been uploaded to YouTube by or with the consent of the copyright holder; but it would be an infringement if the YouTube video was itself infringing copyright, having been uploaded without consent. Similarly, framing material that has been made available only behind a paywall in a way that avoids that paywall will likely be an infringement.

The law is attempting to keep up with new technology and ways of dealing with copyright material. How the laws of copyright apply to the digital world is not always straightforward. As with hyperlinks, if in doubt take legal advice.