may be difficult for individuals who post links to know whether or not the material they link to 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 knew that Playboy had not consented 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 has been made available to the public without consent . However , it presents difficulties for those posting hyperlinks , particularly those who might be considered to be doing so for profit . ‘ For profit ’ was not defined by the court . Clearly ,
Fair dealing advice those running commercial websites deliberately linking to copyright-infringing material will be caught . But those running business websites , or websites that 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 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 practice , ‘ necessary checks ’ seem likely to be those checks required to get to the bottom of the question of whether the copyright holder consented , and those posting hyperlinks for profit should be wary of linking to material where the position is unclear . This judgement seems unlikely to provide a defence for those who have not done what is ‘ necessary ’ to establish the position . 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 , and 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 recently 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 web page .
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 ’, ie 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 seek legal advice . n Over the last decade , fair dealing rules have been used with increasing frequency by programme-makers , both in news programmes when reporting on current events , and when reviewing or critiquing copyright works that it ’ s difficult or impossible to license . In addition , in 2014 , fair dealing rules were extended : there is now a specific defence when fair dealing with quotations as well as a defence of ‘ fair dealing for the purposes of caricature , parody or pastiche ’. Abbas Media Law ’ s Nigel Abbas is one of the country ’ s most experienced lawyers advising in this area . He has advised on many hundreds of hours of programming featuring fair dealing over many years .
Nigel is the primary author of Channel 4 ’ s Producers Handbook and one of the primary authors of Channel 4 ’ s fair dealing guidelines . Nigel updated the guidelines for Channel 4 last year to incorporate advice and practical guidance on fair dealing with quotations and for caricature , parody and pastiche . See Channel 4 ’ s guidelines at www . channel4 . com / producers-handbook / c4-guidelines / fair-dealing-guidelines . Nigel advises many of the leading content producers working in this area .
If you need any advice on fair dealing , please contact Abbas Media Law at info @ abbasmedialaw . com or visit our website , abbasmedialaw . com .
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