Internet hyperlinks which lead to protected works without authorization of the author does not in itself constitute a copyright infringement, the European Court of Justice's advocate general said on Thursday. According to the European Union rules, every act of communication of a copyrighted work has to be cleared by the copyright owner. However, it would be to the detriment of the Internet to make hyperlinks fall under these rules, Advocate
General Wathelet said.

The opinion is not binding but the court normally follows such advice.

The case arose when Sanoma, the editor of the monthly magazine Playboy, commissioned a photoshoot of Britt Dekker.

GS Media, operator of the internet site GeenStijl, published advertisements and a hyperlink directing viewers to an Australian web site where the photos in question were made available without the consent of Sanoma.

When the Australian website removed the photos upon Sanoma’s request, GeenStijl published a new advertisement which also contained a hyperlink to another website on which the photos in question could be seen. That site also complied with Sanoma’s request to remove the photos.

Finally, internet users who frequent the GeenStijl forum posted new links to other websites where the photos could be viewed.

"Hyperlinks which lead, even directly, to protected works are not 'making them available' to the public when they are already freely accessible on another website, and only serve to facilitate their discovery," the opinion said.

The advocate general added that this also depended on whether the link was indispensable in making the photos available, a matter which he referred back to the local Dutch court.