8 August 2018Copyright

CJEU gives copyright lesson in online image case

The Court of Justice of the European Union (CJEU) yesterday ruled that uploading a freely-accessible image found online onto a third-party website without the consent of the copyright owner is an act of infringement.

The dispute started when a pupil of a German school found an image of the Spanish city of Cordoba on the internet and used it in a presentation for her Spanish class. The presentation containing the image was uploaded onto the school’s website.

Dirk Renckhoff, the professional photographer responsible for the image, claimed that use of the image on the school’s website was a violation of his rights to authorise the reproduction and communication of the image to the public.

Germany’s Federal Court of Justice (Bundesgerichtshof) requested a preliminary ruling in the matter last year.

It asked the CJEU to clarify whether a work that is freely accessible to internet users on a third-party website with the consent of the copyright owner is made available to the public when it is then included on another publicly-accessible website.

In April, advocate general (AG) Manuel Campos Sánchez-Bordona opined that internet users should not be required to investigate the copyright status of an image found online and used in relation to educational purposes.

Campos Sánchez-Bordona noted that the image had been easily accessible online. Also, he said that on the website which had permission to feature the image, there was no reference to Renckhoff.

People should not be required to investigate whether images on the internet that are available without restriction or explicit warning are copyright-protected when they are used for educational purposes, the AG said.

However, the CJEU yesterday came to a different conclusion.

The CJEU said the inclusion of a freely-accessible work on another publically-accessible website does constitute an instance of making that work available to the public.

“Member states are to provide authors with the exclusive right to authorise or prohibit any communication to the public of their works,” the court said, so any third-party use of a work without the author’s consent constitutes copyright infringement.

Nils Rauer, partner at Hogan Lovells, called the ruling “remarkable”.

He noted that the court has “gone in a totally different direction” to the AG’s opinion and has further refined the concept of “a new public”.

In relation to the educational purposes of the image’s use, the CJEU said that the image was shared with a new public when it was uploaded onto the school’s website rather than when the pupil used it for an educational presentation.

The court concluded that where a photograph that was freely accessible on another website is posted online without the consent of the author, a new authorisation from that author is required to avoid infringement.

Rauer said the court also drew a “noteworthy” distinction between copying and re-uploading content on the one hand, and pure hyperlinking on the other. He said the court separated the acts of embedding a link that refers to the original source and making a new copy of the work available.

“This is an important piece of guidance regarding the scope of application of the ruling, which is likely to have important implications for future cases,” Rauer explained.

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25 April 2018   Internet users should not be required to investigate the copyright status of an image found online and used in relation to teaching purposes, according to an opinion of an advocate general.