Playboy Case: When can linking pirated content be considered unlawful?
Until now, the common practice of the European Court of Justice (ECJ) and some other member states’ courts was that hyperlinks on a website that link to copyrighted work (such as films, pictures, text) cannot be considered as copyright infringements, specifically if the copyright owner made this content public (by posting it online, publishing it in a magazine). This was true, whether the hyperlink publisher did so for financial gain from such hyperlink or if the hyperlinks were published without the pursuit of a financial gain.
However, the ECJ recently issued a ruling that changes the practice as we have known it to date.
In the case in question, no. C-160/15 (the Playboy case), the ECJ was asked to rule on the meaning of Article 3(1) of Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonization of certain aspects of copyright and related rights in the information society. The ECJ hereby ruled that those online publishers who knowingly publish links to illegally uploaded content on their website and whose presence online is aimed at making money, are liable for copyright infringements.
With this ruling, website owners, whose online presence is mainly focused on financial gain, will have to be even more vigilant when linking content on their websites and check whether the content is marked as copyright and if the content is properly licensed.
