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25 April 2018Copyright

AG provides lesson on copyright use and teaching

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 (AG).

AG Manuel Campos Sánchez-Bordona gave his opinion at the Court of Justice of the European Union today, April 25.

In March 2017, Germany’s Federal Court of Justice (Bundesgerichtshof) requested a preliminary ruling in the matter of Land Nordrhein-Westfalen v Dirk Renckhoff.

The question referred to the CJEU was whether the inclusion of a work—which is freely accessible to internet users on a third-party website with the consent of the copyright owner—on another publicly-accessible website constitutes making that work available to the public.

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.

In his opinion, Campos Sánchez-Bordona noted that, on the website which had permission to feature the image, there was no reference to Renckhoff. Also, the image had been easily accessible on the internet.

The student and teacher therefore legitimately assumed that the image was freely available to the public.

He said an internet user should not be required to investigate whether images on the internet (which are available without restriction or explicit warning) are copyright-protected when they are used for purposes relating to teaching and with no commercial aim.

Campos Sánchez-Bordona explained that the target audience of the school’s website was a “new audience” which could be a “potentially large group of people”.

However, he said as the image was already “easily and legally” within the reach of “all” internet users, the school’s action was not “decisive in facilitating access to more people”.

He added that it is reasonable to require a professional who is publishing a work online to take the appropriate measures to share the copyright interest of that work to avoid confusion.

As such, Campos Sánchez-Bordona said there was no communication to the public, answering the  question submitted by the Bundesgerichtshof in the negative.

The full judgment will be available within the next few months.

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8 August 2018   The Court of Justice of the European Union 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.