The end of copyright as we know it, avoided

The question of under what circumstances a work is made available to the public is one of the most disputed subjects in EU copyright law. The Court of Justice of the European Union (CJEU) has ruled on a number of cases over the last years including GS Media (C-160/15), Svensson and Others (C-466/12) and Stichting Brein (C-610/15).

With its August 2018 decision in Land Nordrhein-Westfalen v Dirk Renckhoff (C-161/17), the CJEU has added another facet to the court’s line of jurisdiction. It confirmed that the posting of a picture on a website without the consent of the rights owner constitutes an infringement even if the website from which the picture was taken did not provide any restrictions preventing its being downloaded.

The case involved a dispute between a photographer, Dirk Renckhoff, and a German school which is operated by the Land Nordrhein-Westfalen, a German federal state. The claimant, Renckhoff, took the disputed photo of the city of Cordoba and granted the exclusive right to the operator of an online travel portal. The portal posted the picture on its website without any restrictive measures preventing its being downloaded. A student at the German school downloaded the photograph from the travel website and included it in a school presentation for her Spanish class. In addition, the pupil provided acknowledgment of the website from which she had downloaded the photograph.

The presentation was then uploaded and published on the school’s own website. The photographer became aware of the use of the picture and brought an action against the school claiming that the posting of his photograph on the school website without his consent infringed his copyright. When the school did not want to comply with the demand, the photographer initiated a copyright litigation.

After the previous level of jurisdiction had mainly confirmed the claims, the proceedings went all the way to the German Federal Court of Justice (BGH), the highest German court, which then decided to stay the proceedings and refer the matter to the CJEU (file number: I ZR 267/15).

The court raised the question of whether the inclusion of a work which is freely accessible to all internet users on a third-party website with the consent of the copyright owner on a person’s own publicly accessible website constitutes a making available of that work to the public within the meaning of article 3(1) of Directive 2001/29. It specifically referred to the issue that the work was first copied on to a server and then uploaded from there to the website.

A number of commentators were surprised that the BGH had referred the question to the CJEU. Even more eyebrows were raised when the Advocate General (AG) Campos Sanchéz-Bordona issued his opinion on April 25, 2018. The opinion stated that the use was not to be considered a communication to the public. The AG regarded the photo as an accessory in relation to the presentation.

He also referred to the facts that the photo had been freely accessible on the third party’s website and that the student acted without the intention to make any profit when she put the photo on the website.

In addition, he held that there was no “new public” as the photo had been freely accessible on the third party’s website. According to the AG, it appeared unlikely that a larger number of people would access the photo based on the upload of the presentation on the school website.

The AG also referred to the copyright exception for use for educational purposes laid down in article 5(3) of the InfoSoc Directive and found it should apply under the circumstances. Although access to the photo on the website was not limited to school members, there was a link between the purpose of the lesson and the inclusion of the photograph.

Different approach

This opinion was followed by a huge echo not only from representatives of the legal profession but also from various interest groups of photographers and copyright owners in general. Commentaries went far and claimed the adoption of the AG’s opinion would lead to the end of the copyright law we have known.

Indeed, the evaluation of the AG was not just surprising. Despite the specific circumstances of the case, a CJEU decision confirming the opinion would have had the capability to be a turning point in the evaluation of use of third-party material on the internet in a broader sense.

However, the judges of the CJEU were unimpressed by the considerations of the AG and approached the case differently. They referred to the core of article 3(1) of the EU Directive 2001/29, under which the author of a work has the exclusive right to authorise or prohibit any communication to the public of that work.

Contrary to the opinion of the AG, the CJEU ruled that the unauthorised re-posting of a copyright work would be an act of communication to the public within article 3(1) of the directive. The re-posting of the photograph would also refer to a new public that was not already taken into account when the initial work was published online.