The CJEU will destroy Internet?

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The new judgment of the CJEU of september 8 has made illegal hyperlink because of protection of copyright.
The last decision of the CJEU proclaims illegal a link because pointing to a content without the permission of the author.

This is the judgment of September 8 GS Media BV that will give a new scope on the legal definition of a link. In 2014 a first judgment, Svensson had ruled on links by declaring illegal links « making available » and « communicative acts » of content that skirted an access restriction.
In the case GS Media BV, there was a link posted on the company’s website referring to a platform which didn’t have the broadcast rights of pictures because not having permits of author.
The court judge that even if the files are already available, it must have an author’s authorization to be able to point a link on this work.
This decision will be debated because it is restrictive on freedom of expression and information.
The court wanted here brought a strong protection of contents as European law provide. Here are especially targeted streaming sites referring to links. The court decided in addition to sanctioning the original host of content to punish those relaying these contents with hyperlinks.
Is this the end of the search engines and sites of automatic indexing links?
The CJEU has provided a framework for its judgment and the links will be illegal or not under certain assumptions. The court makes the difference between profit or not, for the one who will share the link, and if the permission of the author is existing or not.

Which links may be declared illegal?
We’ll make some assumption to see links that may be declared illegal.

-The Content links have a permission of the author
-link with an open content to all users
These links are legal because available for all with the permission of the author, so they will be legal
-link with access restriction content
These links will be illegal if they bypass the restriction access, that is a user accesses a content that should not have access.
A nuance exists is if these contents are freely available elsewhere then the link will not be illegal because the content is available, the link does not create a new public.

-Link pointing to pirated content, without permission of the author
– Non-profit link (for  » private individual « ) with presumption of good faith
The links to illegal content made by a non-profit user not informed that the content is illegal will be deemed legal
– Non-profit link (for « private individual ») without presumption of good faith
If the user linking clearly knows that it points to an illegal content, then this link will be deemed illegal because the user will not be in good faith.
-For profit  link (for the « professionals »)
These links will be illegal, the court understood here that if a link is created for profit, the creator of the link must verify the legality of the pointed content and could not rely in good faith except for cases especially like the automatic indexing for example.

This judgment of the court poses real problem for all professionals who may be guilty of creating a link, the jurisprudence will then show the limits of this judgment, which are still quite vague to say when a professional is guilty of “a public communication” of a content protected or not. This judgment also establishes a priori control of the links created for profit to ensure that they not link to copyrighted content. This is a real danger for the web that is a link network. It also created a strong legal uncertainty for all web professionals who could be accused of creating a link, especially if the content changes after creation.
The court wanted here to increase the level of protection of authors but from a technical point of view it is difficult to check the legality of the contents of all links created for profit.

 

photo Mehdi BougaultMehdi Bougault

E-business student in Master 2, University of Strasbourg, I’ve studied management, and am passionate about marketing and strategy in the digital world.

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