Technological advancements have led to the emergence of new forms of using content protected as works under the Copyright and Related Rights Act (hereinafter referred to as the Copyright Act). Particularly when making such works available online, numerous legal controversies arise when analyzing these issues based on applicable law.
One of the most interesting examples of this is linking. A link is a reference within a document to another document. Figuratively speaking, linking means that clicking on a specific element on one website will display the content of another website or document. Links (hyperlinks) can be divided into those that refer to the home page of a given website and those that provide access to subpages of that website ( deep linking ). This division can also be significant from the perspective of assessing a given activity as an infringement on the copyright holder's monopoly. It is crucial whether the person clicking the link will gain access to the home page of the website or to specific material.
First, it should be recalled that the use of a work takes place in specific fields of exploitation. These fields of exploitation are defined, among others, in Article 50 of the Copyright Law. In the context of hyperlinks, one of the fields listed in Article 50, paragraph 3 of the Copyright Law should be indicated, which is " making the work available to the public in such a way that anyone may access it from a place and time of their choosing ," which constitutes one manifestation of disseminating the work. Placing a link to another website where the work is located may be considered such an action.
The issue of copyright infringement through linking has been widely analyzed in the case law of the Court of Justice of the European Union, where the concept of a " new public " was developed. If a web user shared a link to copyrighted content, an infringement will only be considered to have occurred if the link enabled access to the material by circumventing the restrictions applied by the website in question.* Therefore, if a given work is widely available online and its use does not require the user to register on the website or pay a fee, linking to that work on another website will not constitute an infringement. However, a copyright monopoly is assumed if the linked material was placed on the website without the right holder's consent. In subsequent judgments, the Court of Justice determined that the linker's actions are unlawful if they were aware that the linked material was placed on the website unlawfully and with the intention of making a profit.**
In such cases, the Court of Justice applies a largely purposive interpretation, focused on protecting copyright holders. EU and national regulations are still unable to meet the challenges posed by technology, so it's no surprise that the Court of Justice seeks to address them by broadly interpreting applicable law. On the other hand, however, it can be argued that the proposed solutions lack sufficient support in these regulations, particularly national law.
It is pointed out, for example, that infringement of absolute copyright is objective in nature, and therefore cannot be dependent on the user's awareness of the illegality of the source***. Awareness of the illegality of the action may only be relevant if guilt is established when pursuing claims under general principles****.
Polish case law also includes judgments that address the issue of linking. It is particularly worth noting the judgment of the Court of Appeal in Warsaw of 7 May 2014 (I ACa 1663/13), in which the court stated: " In order to establish that exploitation has occurred within the scope of sharing specified in Article 50 of the Act on Copyright and Related Rights, it is sufficient to post a link that causes the work to be played ." The court therefore had no doubt that the copyright of the song's creator had been infringed simply by sharing the link on another website.
It should be emphasized, however, that there are still many doubts regarding the qualification of the behavior of Internet users and only a change in the applicable legal provisions, which would take into account the standards developed by case law and the possible division of links, which has already been mentioned above, would allow for their removal.
* Judgment of 13 February 2014, file reference C-466/12, Nils Svensson and others v. Retriver Severige AB,
** Judgment of 8 September 2016, file reference C-160/15, GS Media BV v. Sanoma Media Netherlands BV and others,
*** Ł. Maryniak, "Liability for the use of hyperlinks", PME 2021, no. 1
**** op. cit.
This alert is for informational purposes only and does not constitute legal advice.
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