Editor's note: Playboy magazine publisher Sanoma Published a collection of photographs under exclusive license in the electronic edition of their magazine. GS Media Is the website GeenStijl operator, Before Playboy published the above photos, GeenStijl A link was posted to the site that contained the photo (Filefactory) . Sanoma After the warning is invalid GS Media Initiate a lawsuit.

[background] Playboy magazine publisher Sanoma, Under exclusive authorization, Published a series of photos in the electronic edition of its magazine. GS Media Is the website GeenStijl operator, For publishing blogs or e-magazines, "Deliver news in light and playful language, Uncovering scandals and investigative reports" Etc. Before Playboy published the above photos, GeenStijl A link was posted to the site that contained the photo (Filefactory) . Sanoma to GS Media Send a warning letter, Inform them that the content of the website to which the link is posted is illegal, requirement GS Media Remove the link from their website. GS Media The warning letter was ignored. but, Filefactory Photos were removed from the site. Sanoma right GS Media Initiate a lawsuit, The act of Posting a link to illegal content and using an edited version of one of the photos in question, Infringement of the copyright of photographers and publishers. The court of first instance and the court of second instance upheld it Sanoma claim. The Amsterdam Court of Appeal noted, Even though the photos were taken in the Filefactory It's on the website, But the act of Posting links to the site and using edited photos, Play a role in encouraging GeenStijl Visitors to the site visit the role of the photos involved. If the above link is not published, It is not easy for visitors to find these photos. GS Media Application for retrial. Be unable to follow "Svensson" case (Case number: C-466/12) and "BestWater" case (Case number: C-348/13) Reasonable inference in the judgment, Whether the act of publishing a work without the consent of the right holder belongs to "publish (Communication to the public) " , So the Dutch Supreme Court suspended the proceedings, Ask the Court of Justice of the European Union for a preliminary ruling (Preliminary Ruling) .

[discover] The Supreme Court of the Netherlands poses the following question to the Court of Justice of the European Union: Without the consent of the right holder, Post a link on a website that points to content from another website——Free access to the owner's protected works is available on the other site——act, Whether to constitute "Directive of the European Parliament and the European Commission on Harmonisation of copyright and related rights in an information society (The first 2001/29/EC No) " (Hereinafter referred to as "European Union regulation 2001/29/EC Number instruction" ) The first 3 article 1 subparagraph "publish" ; and, If the person who publishes the link knows that the content pointing to the link is not authorized by the right holder, Whether it has any significant impact on the settlement of the above disputes? Court of Justice of the European Union ruling, "Understand that the content pointed to by the link is not authorized by the right holder" Is the composition of judgment "publish" Deterministic condition. The court stated that, In order to determine whether "know" , You should consider whether the person Posting the link is Posting it for profit. If it is published for financial gain, Then the person Posting the link has an obligation to whether the content that the link points to is legal or not "Necessary review" , In this case, Unless counterevidence is presented, It is generally assumed that the person who published the link was already "know" . opposite, If you publish the linker (Usually it's an individual) The link is not posted for profit, The burden of proof is reversed, Because for those who don't post links for profit, Compared to the benefits they get, "review" The obligations are too big and costly. In this case, Due to GS Media Publish link to Filefactory The website stores photos of the crime, The goal is to gain financial gain, and Sanoma Has issued a warning against its publication. Therefore, Court of Justice of the European Union GS Media The act of publishing the above link constitutes "European Union regulation 2001/29/EC Number instruction" prescribed "publish" .

[comment] Following the Court of Justice of the European Union "Svensson" case (Case number: C-466/12) Introduce into "Newly published (new public) " This concept is used to determine whether the Posting link behavior is constituted "publish" After the decisive factor, Once again, the case was raised unexpectedly, "For profit" and "Know the illegality of the content" It's also about determining whether it's constituted "publish" Factor of. From a technical point of view, What needs to be criticized, The emergence of new, vaguely defined concepts in the award and the resulting apparent non-deterministic interpretation. however, In order not to deviate "Svensson" The criteria established in the case, Only in this way can inequality be corrected. simultaneously, It also prevents tools such as links, which are necessary for the smooth functioning of the Internet and for the free exchange of information and opinions, In law and case law, May be used for illegal gain by exploiting the intellectual property works of others.

author: Patricia MARISCAL, Associate partner at Esaberi compile: Li Fangqian, The Esaberi intern proofreading: Liu Dan, Esabarry Legal Counsel source: Esabaril (ELZABURU) Intellectual property rights