Do You Share Links on the Internet? When are Intellectual Property Rights Violated?



January 2nd, 2021

The Internet means information and creation, and they can be protected by copyright simply because they were created. We all share and republish online content, but how many of us think about the intellectual property rights of those who created that content? Whether you use links on your own website or on social media, as long as these links relate to content created by someone else, you should consider whether the rights of the author who created it are respected.

What do intellectual property rights (copyright) mean?

Intellectual property refers to the original intellectual creation, such as literary, artistic works, software, musical compositions, photographs, paintings, sculptures, design, architectural projects, etc. These creations are protected by copyright, which consists, for example, in the right to decide whether, in what way and when the creation will be made public, the right to claim the observance of the integrity of the creation and to oppose to any change, as well as any damage to the creative work, if it harms the author's honor or reputation. In other words, once you create, you benefit from copyright, including online. On the other hand, content on the Internet can be a person's intellectual property – and here's the question:

Under what conditions can you share/ use online content created by someone else?

Web pages may include images, video, music, text, etc., which may be works of intellectual creation, and the links should be carefully used. The publication or making available to the public the work of intellectual creation is a right of the author, which means that another person cannot do it without the consent of the author. The easiest way to avoid copyright infringement is to seek the consent of that person. But in the ocean of information on the Internet, you will most likely find yourself in a position to share links to websites where the author's intellectual work has already been published (for example, you share on your social media page a photo published on a website).

The Court of Justice of the European Union[1] identified 2 hypotheses:

  • Links to creations freely available on the Internet (for example, an article published on a blog or a photo published on a dedicated website) – sharing does not infringe copyright.

  • Links to creations that are accessible under restrictive conditions (for example, content accessible to users based on subscription/ payment) – sharing violates copyright.

It is essential that the consent of the author to bring their work to the public to be in place. For example, if a photographer has agreed that a photograph taken by him to be published on a website, it means that he has exercised their right to bring the work to the attention of the public/ Internet users, and sharing the link to that website will not infringe copyright. On the other hand, if the photograph were available only on a paid basis, it means that the author did not give their consent for publication towards the general public. In the latter case, if the photograph is shared so that it can be accessed by anyone (not just subscribers or payers), the CJEU is of the view that those persons represent a "new public" and that the person sharing the link in this manner will infringe copyright.[2]

If the intellectual creation was published on the Internet without the author's consent and:

  • you share the link without pursuing a profit (so outside your business) and you do not know that you share illegal content - sharing does not infringe copyright;

  • you share the link within a commercial activity, then you should conduct the necessary research to ensure that the link does not lead to content illegally published on that website[3], and if the author has not given their consent for publication, then the link must not be shared.

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