Europe’s highest court said that a German school violated a photographer's copyright when a student presentation containing one of his pictures was published on its website.
The Court of Justice of the EU (CJEU) ruled that posting a photo on a website requires the permission of the original author, even if the image has already appear elsewhere with the consent of the author. However, hyperlinks to the original source are legal.
Photographer Dirk Renckhoff sued the western German state of Land North Rhein-Westphalia for copyright infringement and 400 euros ($450) in damages after he discovered one of his image on the website of a local high school. The image was first used by a student in a presentation before being posted online by the school. The student downloaded the picture of the Spanish city of Córdoba from a travel website (Reisemagazin Schwarzaufweiss) which had been granted exclusive rights by the photographer to use his picture.
While it may seem obvious that stealing a picture from a website goes against the copyright law, the central legal point was to interpret the meaning of “communication to the public” as stated by the European Directive 2001/29/EC. After an initial legal battle, the case ended up on the desk of the Federal Court of Justice of Germany. Faced with uncertainty regarding the interpretation of the directive, the top German court sought guidance from the Luxembourg-based European court of justice in order to clarify the content of this directive.
The German court asked: “Does the inclusion of a work — which is freely accessible to all internet users on a third-party website with the consent of the copyright holder — on a person’s own publicly accessible website constitute a making available of that work to the public within the meaning of Article 3(1) of [Directive 2001/29] if the work is first copied onto a server and is uploaded from there to that person’s own website?”
The European Court of Justice responded that: “The concept of ‘communication to the public,’ must be interpreted as meaning that it covers the posting on one website of a photograph previously posted, without any restriction preventing it from being downloaded and with the consent of the copyright holder, on another website.”
“The posting on a website of a photograph that was freely accessible on another website with the consent of the author requires a new authorization by that author,” judges said, adding that “any use of a work by a third party without such prior consent must be regarded as infringing the copyright of that work.”
Therefore, this case C-161/17 clarifies the directive and sets a precedent that could have massive repercussion in Europe. It could result “in a rash of litigation as artists assert their rights” said Nils Rauer, a partner at Frankfurt-based Hogan Lovells. “The idea is that we as a society should appreciate and protect copyrighted works. The overall intention of the Commission, European Parliament and the court is to create respect for copyright,” he added.
