HomeInsightsCourt of Justice of European Union holds that downloading a photograph from one website and posting it on another without the author’s consent constitutes “communication to the public”

Article by

The defendant, Mr Dirk Renckhoff, a photographer, authorised the operators of a travel website to publish one of his photographs on their website. A school pupil in Germany downloaded that photograph from the travel website (on which it was freely accessible) and used it in a school presentation. It was then published on the school website.

Mr Renckhoff issued proceedings against the school seeking an order prohibiting the reproduction of his photograph and damages.

Mr Renckhoff submitted that he only authorised the operators of the travel website to use his photograph and that its posting on the school website was an infringement of his copyright.

The German Federal Court of Justice asked the CJEU whether Article 3(1) of the Copyright Directive (2001/29/EC), which provides that the author of a work has the exclusive right to authorise or prohibit any “communication to the public” of that work, covered the posting on a website of a photograph which had previously been published on another website with the consent of the copyright holder.

The CJEU found that the posting on a website of a photograph previously posted on another website must be treated as “making available” and, therefore, an “act of communication” within the meaning of Article 3(1), since it meant that a “new public” could then access the copyright work. The public that the copyright holder had initially taken into account when he consented to the communication of his work on the original website was composed solely of users of that website, and not users of the second website or, indeed, other internet users.

The CJEU explained that the facts of this case should be distinguished from the facts in Svensson (C-466/12) and Bestwater (C-348/13) because (a) the hyperlinks involved in those cases “contribute…to the sound operation of the internet by enabling the dissemination of information in that network” and no hyperlinks were involved in this case, meaning that the balance of interests between the copyright owner and the users tipped in favour of the copyright owner, and (b) the new posting on the separate website removed the copyright owner’s ability to control the availability of the photograph on the internet, since in the other two cases the removal of the original image would necessarily render the hyperlink obsolete, and (c) the CJEU noted that in Svensson the Court ruled that the administrator of the linking site was not involved in the communication being made, whereas in this case the person making the new posting played a “decisive role” in the new communication. (Case C-161/17 Land Nordrhein-Westfalen v Dirk Renckhoff (7 August 2018) — to access the judgment in full, go to the curia search form, type in the case number and follow the link).