A couple of years ago in the Svensson case, the European Court of Justice (CJEU) made it clear (finally) that merely linking to content is not infringement. That was a case involving a news aggregator linking to official sources. However, in a new case that has been referred to the CJEU, the court will examine if links to unauthorized versions of content is infringing as well. The excellent IPKat has the details of the case which involves a blog that linked to some pre-publication Playboy photos in the Netherlands. A lower court had said that it wasn’t copyright infringement, but still broke the law, by facilitating access. On appeal, the court found that the free speech concerns outweighed the copyright concerns. From the description by the lawyer representing the blogger (“Geen Stijl news”):
We lodged an appeal on behalf of Geen Stijl on a few grounds which was successful: the Court of Appeal had misapplied the ‘quotation’ exception in copyright law and did not sufficiently balance the freedom of speech versus copyright protection, as it indicated that ‘only in exceptional circumstances’ would the freedom of speech outweigh copyright protection, as freedom of speech concerns are taken into account in the law, in particular in the exceptions. The Supreme Court followed our reasoning that copyright is a fundamental right, but that the same goes for the freedom of speech, and that they thus should be considered on equal footing. The Court of Appeal should therefore have considered all relevant circumstances (among which is whether this is commercial speech or a news item) and not only exceptional circumstances. Never before has the freedom of speech been given so much weight in The Netherlands.
That’s the good news. On the flip side, Sanoma, the Dutch publisher of Playboy, has appealed on its own, and that’s the question that is going to the CJEU. It basically asks how to apply that earlier ruling saying linking is not infringing to a case in which the content being linked to is not authorized — and whether it matters if the linker knew or should have known the content was infringing.
Given the scenario, this could become a rather important copyright case in Europe, considering how frequently people may end up linking to content that may be infringing.