This further complicates the situation.
The criteria we have previously mentioned are applied under the assumption that the author personally communicated the work on the Internet. However, it is common that someone else uses the copyright-protected content without the permission of the author by posting it on various sites on the Internet without restricting access.
This is exactly what happened when the Dutch publisher “GS Media” posted a hyperlink on its website “GeenStijl” which led to the “Filefactory” website. On the “Filefactory” website, users were able to download 11 files with unpublished photos of a “Playboy” photo model and reality show contestant.
As expected, the “Playboy” magazine publisher, photographer, and photo model filed a lawsuit against “GS Media”. What followed was a procedure whose outcome was eagerly awaited in the public.
The Dutch court before which the process was initiated addressed the Court of Justice of the European Union with a question regarding the interpretation of the notion of public communication of the work. The question referred to the significance of the fact that the author never, in any way, published the work that was communicated by a third party.
The position taken by the Court of Justice is still controversial today, several years after the decision was announced. Namely, the Court found that for the existence of the act of public communication of the work using a hyperlink, it is important whether the action was done with the aim of gaining material gain. This is under the assumption that the work was communicated by an unauthorized person, and not by the author. In making the decision, the Court was guided by the following criteria:
Firstly, the Court emphasized the role of the user (GS Media) and the nature of its intervention in the context of the existence of intent, which includes the awareness that the action makes copyright-protected content available to other users, while those users would not have the opportunity to gain access to the work otherwise, i.e., without the intervention of GS Media.
Secondly, the Court interprets the concept of the “public” as an indeterminate number of potential viewers, which usually implies a fairly large number of people. In this context, the court again refers to the already established criterion of “new technical means”, as a different criterion from the one originally used, for the purpose of communicating the subject of copyright, as a condition for the existence of the act of public communication.
Thirdly, the Court finds that the fact that the communication was made for the purpose of making a profit is also important in this specific dispute and that the answer to the question of whether there was an act of public communication of work already publicly available on the Internet without restrictions (and without the permission of the author!) depended on whether the user acted with the intention of making a profit by sharing content.
The Court concludes that, when a hyperlink to a copy of a copyrighted work is posted for profit, there is a presumption that the person who posted such a link has previously performed the necessary checks to ensure that the work is not illegally published on the hyperlinked website. For this reason, there is a further assumption that the posting of the link was done with the knowledge that the link leads to protected content, as well as accepting the possibility that the necessary consent to share that content was missing, i.e., that the content was shared illegally.
So, if you want to make money by sharing someone else’s content, it is assumed that you knew that the content was illegally communicated. This means that the opposing party does not have to prove your negligence. More importantly, it depends on your conscientiousness whether the copyright has been infringed. Pretty ungrateful position, right?