In Case C-161/17 Land
Nordrhein-Westfalen v Dirk Renckhoff, the CJEU has given further guidance
on whether, by posting a photograph on the internet, the photograph is made
available to a new public.
Facts
Mr Dirk Renckhoff, a photographer, authorised the operators
of a travel website to publish one of his photographs on their website. A pupil
at a secondary school in Land North Rhein-Westphalia in Germany (Gesamtshcule
de Waltrop) downloaded that photograph from the travel website (on which it was
freely accessible) in order to illustrate a school presentation. It was then
published on the school website.
Mr Renckhoff brought an action against the Land North
Rhein-Westphalia before the German courts seeking an order prohibiting the
reproduction of his photograph. He also claims damages of €400. Mr Renckhoff
claims that he gave a right of use only to the operators of the travel website
and that the posting of the photograph on the school website is an infringement
of his copyright.
The Bundesgerichtshof (Federal Court of Justice, Germany)
asked the Court of Justice to interpret the Copyright Directive (Directive
2001/29/EC), according to which the author of a work has the exclusive right to
authorise or prohibit any communication to the public of that work. Did the
concept of ‘communication to the public’ cover the posting on a website of a
photograph which has been previously published on another website without any
restrictions preventing it from being downloaded and with the consent of the
copyright holder?
Judgment
In its judgment of 7 August, the Court answers that question
in the affirmative.
The Court states, first of all, that a photograph may be
protected by copyright law provided (which is for the national court to
ascertain) that it is the intellectual creation of the author reflecting his
personality and expressing his free and creative choices in the production of
that photograph. The Court goes on to hold that, subject to the exceptions and
limitations laid down exhaustively in the Copyright Directive, any use of a
work by a third party without such prior consent must be regarded as infringing
the copyright of that work. The Directive aims to establish a high level of
protection for authors, allowing them to obtain an appropriate reward for the
use of their works, including on the occasion of communication to the public.
On the facts, the posting on one website of a photograph
previously posted on another website, after it has been first copied onto a
private server, must be treated as ‘making available’ and therefore, an ‘act of
communication’ within the meaning of Article 3(1) of Directive 2001/29. Such
posting on the internet gives visitors to the website on which it is posted (in
this case the school website) the opportunity to access the photograph on that
website.
Furthermore, the posting of a work protected by copyright on
a website other than that on which it was initially communicated with the
consent of the copyright holder must, in circumstances such as those at issue,
be regarded as making available to a new public. In such circumstances, the
public taken into account by the copyright holder when he consented to the
communication of his work on the website on which it was originally published
is composed solely of users of that website, and not (1) of users of the
website on which the work was subsequently published without the consent of the
right holder or (2) other internet users.
The CJEU observes that such posting must be distinguished
from the making available of protected works by means of clickable link leading
to another website on which the initial communication was made. Unlike
hyperlinks, which contribute to the smooth functioning of the internet, the publication
on one website without the authorisation of the copyright holder of a work
previously published on another website with the consent of that copyright
holder does not contribute, to the same extent, to that objective.
Lastly, the Court states that it is of little importance if,
as in the present case, the copyright holder does not limit the ways in which
the photograph may be used by internet users.
