ECJ litigation proves that publishers are lying about „not wanting to tax hyperlinks“  08/09/2016 by Till Kreutzer

Today the European Court of Justice (ECJ) decided that linking to a work that has been uploaded illegally on the Internet might infringe copyright. The case was pushed by, inter alia, a publisher whose association EPC claims that the European request for a neighbouring right does not concern hyperlinking at all.
Facts of the case
The facts of the case are quite simple and things like that happen everyday: A dutch gossip website, that was provided by GS Media, linked in an article to some photos that were uploaded without the consent of the rights owner on an Australian website. Sanoma, the editor of Playboy and owner of the rights in the photos, sued GS Media for copyright infringement. 
The general legal situation
In the famous Svensson and Best Water cases the ECJ has ruled that hyperlinking does not constitute a „communication to the public“ and therefore cannot be a copyright infringement. In other words: You do not need a license to link to a copyright protected work. For a working Internet this goes without saying: If a license would be needed for hyperlinking or embedding, these technologies were dead.
In the GS Media case the ECJ held that this general rule is not necessarily true for links to copyrighted content that was posted illegally, i.e. without a license. It decided that linking to illegally uploaded content can be a „communication to the public“ if the provider of the link knew that the source is illegal. If posting the link serves a commercial purpose it is presumed that this knowledge actually existed.
What has this to do with the claim for a publisher’s neighbouring right?
The verdict of the Court is highly debatable in many regards. But this is not the topic of this post. What is, is that the litigation shows how the publishers try to drag hyperlinking into the copyright logic while denying constantly to do so.
The European Publishers Council (EPC) has just recently published an explanation that (des-)informs about their call for a European neighbouring right for publishers. It is full of allegations that this right shall not restrict linking and sharing in any way. E.g.:
„Despite what anti-copyright campaigners are claiming, THE “LINK” IS NOT UNDER THREAT: publishers want and actively encourage their readers to share links to articles.“
„Nothing we are asking for would affect the way that our readers access publishers’ content, or share links on social media or via apps and email to friends and family.“
Now, Sanoma, the plaintiff in the GS Media case is member of EPC. The case proves that it is a lie to pretend that the publishers do not want to drag hyperlinks into the copyright/neighbouring system. They do actively from different angles. The GS Media litigation is the judicial approach, whereas the lobbying for the European neighbouring right is the legislative effort.
Fact is that the recently leaked draft for the neighbouring right in the upcoming DSM directive reads like the wish list of the publishers. And it covers hyperlinking and sharing not only by companies but everybody who shares and posts links. 
Why is that so important?
One thing should be perfectly clear: In nowadays’ online communication there is no linking without snippeting! In a vast majority of cases linking goes along with copying a small excerpt, a snippet, from the source, that accompanys the link. That is how sharing information on facebook, on twitter, in blogs ... work. So, even if a mere hyperlink would not be covered by copyright (in general) and/or the neighbouring right, the copying and adding the smallest excerpt from the source publication is. If this practise is made subject to licensing requirements, the Internet will definitively be broken.
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