(Aug. 24, 2018) On August 7, 2018, the European Court of Justice (ECJ) held that the download and subsequent posting on a website of a photograph that has previously been published on another website with the consent of the author and was freely accessible requires new consent from the copyright holder. The upload of such a photograph is a “communication to the public” within the meaning of the EU Copyright Directive, the Court ruled. (Case C-161/17, Land Nordrhein-Westfalen v. Dirk Renckhoff, Aug. 7, 2018, ECLI:EU:C:2018:634, InfoCuria website; Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the Harmonisation of Certain Aspects of Copyright and Related Rights in the Information Society (Copyright Directive), 2001 O.J. (L 167) 10, EUR-Lex website.)
Facts of the Case
The plaintiff in the case, Dirk Renckhoff, is a photographer. (Case C-161/17, supra, at 6.) One of his pictures was used with his permission on a travel website, where it was freely accessible. (Id. at 7.) The picture was downloaded by a student at a public school in North Rhine-Westphalia, Germany, and used for a school presentation. The student credited the travel website below the photograph. The presentation, including the picture, was subsequently uploaded to the school’s website. (Id.) The plaintiff brought an action against the state of North Rhine-Westphalia, seeking to remove the picture and claiming damages in the amount of €400 (about US$456). He alleged that his permission covered only the original posting on the travel website and that any other use without his authorization infringed his copyright. (Id. at 8.) The German Federal Court of Justice (Bundesgerichtshof, BGH) stayed the proceedings and asked the ECJ in its request for a preliminary ruling whether “the concept of ‘communication to the public,’ within the meaning of Article 3(1) of Directive 2001/29, must be interpreted as meaning that it covers the posting on one website of a photograph which has been previously published without restriction and with the consent of the copyright holder on another website.” (Id. at 12–13.)
Article 3, paragraph 1, of the Copyright Directive does not define the concept of “communication to the public.” It states that,
Member States shall provide authors with the exclusive right to authorise or prohibit any communication to the public of their works, by wire or wireless means, including the making available to the public of their works in such a way that members of the public may access them from a place and at a time individually chosen by them.
Furthermore, article 5, subparagraph 3(a) provides that Member States may provide for exceptions or limitations to the rights in cases of
use for the sole purpose of illustration for teaching or scientific research, as long as the source, including the author’s name, is indicated, unless this turns out to be impossible and to the extent justified by the non-commercial purpose to be achieved.
The ECJ recalled that article 3 does not define “communication to the public” and that “the meaning and scope of that concept must be determined in light of the objectives pursued by the Directive and the context in which the provision being interpreted is set.” (Id. at 17.) The ECJ stated that the aim of the Directive is to “establish a high level of protection for authors,” which necessitates a broad interpretation of the concept of “communication to the public.” (Id. at 18.)
In its ruling, the Court pointed out that it is clear that a “communication to the public” requires (1) an “act of communication” of a work so that people may access it and the communication of that work to (2) a “public.” (Id. at 19 & 20.) It stated that in the present case, the upload to the school’s web site constituted an “act of communication,” as visitors were able to access it. (Id. at 21.) It added that the concept of the “public” refers to an “indeterminate number of potential viewers and implies, moreover, a fairly large number of people.” (Id. at 22.) According to the ECJ’s case law, in order to qualify as a “communication to the public,” a protected work must either be communicated using specific technical means different from those previously used or communicated to a “new public” that was not initially taken into account by the copyright holders. (Id. at 24.)
In the present case, the Court stated that both communications were made with the same technical means. (Id. at 25.) However, it held that the work was made available to a new public. (Id. at 35.) The Court stated that the case at issue is not the same as providing a hyperlink, which does not constitute a communication to a new public. (Id. at 37 & 38.) Unlike hyperlinks, the publication on a website, without the authorization of the copyright holder, of a work that was previously communicated on another website with the consent of that copyright holder does not contribute, to the same extent, to the objective of “the sound operation of the internet by enabling the dissemination of information in that network characterized by the availability of immense amounts of information.” (Id. at 40.) The Court concluded that any other interpretation would amount to applying an exhaustion rule to the right of communication and deprive the copyright holder of the opportunity to claim an appropriate reward for the use of his or her work. (Id. at 33 & 34.)
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