In the recent case of Land Nordrhein-Westfalen v Renckhoff (C-161/17), the CJEU handed down one of its last judgments before breaking for the summer, on copyright infringement. The Court held that posting a photograph on a website amounted to a communication to the public. This was the case even where the photograph had been previously published on another website with the consent of the copyright owner. It is also worth noting that, unusually, the CJEU did not follow the advice of the Advocate General, who concluded that there was no copyright infringement in these circumstances.
Article 3(1) of Directive 2001/29/EC ("the InfoSoc Directive") provides an author of a copyright work with the exclusive right to authorise or prohibit communication to the public of that work, including making the work available to the public in such a way that members of the public may access the work from a place and at a time individually chosen by them. Importantly, this right is not exhausted by the copyright owner.
Article 5 of the InfoSoc Directive states that Member States may provide a defence to copyright infringement where the relevant use is for the sole purpose of illustration for teaching or scientific research, as long as the source, including the author’s name, is indicated, unless this turns out to be impossible and to the extent justified by the non-commercial purpose to be achieved.
A student at a German secondary school had written a presentation as part of a language workshop which included a photograph taken by Renckhoff which the student had downloaded from an online travel portal. The student included a reference to the portal in the presentation. Renckhoff had not put any restrictive measures on the photograph preventing it from being downloaded. The school made the presentation available for downloading on its website.
Renckhoff claimed the right of use was given exclusively to the travel portal. Posting the presentation on the school's website, therefore, infringed Renckhoff's copyright by reproducing and/or making the copyright work available to the public. Proceedings were issued against the German city with responsibility for the secondary school.
On appeal, the Bundesgerichtshof (German Federal Court of Justice) opted to stay proceedings and referred the following question for a preliminary ruling: "Does the inclusion of a work — which is freely accessible on a third-party website with the consent of the copyright holder — on a person’s website constitute a making available of that work to the public if the work is first copied onto a server and is uploaded from there to that person’s own website?’
The CJEU held that the concept of "communication to the public" must be interpreted broadly. To infringe, there must be (1) a communication of the work (2) to a "public" (3) using technical means different from those originally used or the communication is to a "new public". Taking each in turn:
- The posting on one website of a photograph previously posted on another website (after copying to a private server) must be treated as an act of communication as it gives visitors of the new website access to the photograph.
- The concept of "a public" refers to an indeterminate number of potential recipients and implies a fairly large number of persons. In this case, the communication is to all potential users of the website which is a large number of indeterminate recipients.
- The work is communicated to a "new public" where the recipients are not already taken into account by the copyright holder when they authorised the initial communication. Here, the work was communicated by the same technical means. Therefore, to infringe the communication must be to a new public.
- Article 3 of the InfoSoc Directive makes clear that the author's right is not exhausted by the first communication of the copyright work. In order to ensure the author's rights are not exhausted, posting a photograph on a website which differs to the original website on which the photograph was posted must be to a new public. The original public was composed solely of users of that site and not users of the second website.
Whilst the case is good news for copyright owners, the decision is somewhat inconsistent with CJEU case law. Specifically, the issue of hyperlinking to copyright works has been considered at length by the CJEU. In Svensson, it was held that hyperlinking to a work freely available on a website, without a firewall or restricted access, was not a communication to a "new public" because the recipients were the same i.e. all internet users. In this case, the same analysis should apply.
It is clear from their judgment that the CJEU's decision was driven by policy. Specifically, hyperlinking is less of an issue because if the copyright holder wants to remove the work from the original website, the hyperlink will break and no longer function. By contrast, if the work has been made available on another website, the copyright holder loses control over removing the work. Given the InfoSoc Directive advocates a high level of protection for rightsholders, and Article 3 expressly states that the first communication does not exhaust the exclusive right to communicate the work to the public, the concern was to restrict alienation of control over the work.
The analysis appears to be somewhat illogical. Are the users of a second website really a "new public"? The CJEU thought so, on the basis that the users of the respective websites were different. But could they say that with any real certainty? Where a user is required to set up an account or log in, there is a distinct class of persons with access to the original website. However, where two websites are freely available on the internet (i.e. with no geographical limitations) it's difficult to say with confidence that the users of the sites fall into distinct classes.
The upshot of this judgment is that, absent a convincing argument to the contrary, it must now be presumed that users of any second website must be considered a "new public".
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