Unauthorised re-posting of protected content may be an infringement.

Business impact

Businesses whose websites are hosting photographs, videos and other third-party content would be advised to proceed with caution – particularly in situations where a licence agreement hasn’t been entered into with the rights holder.  It is possible that websites may well begin to move away from their current practices and, instead, gravitate towards hyperlinking such works.

Overview

The German Federal Court of Justice had referred this case to the CJEU and it concerned a copyright infringement claim made by a photographer against a school for its use of a photograph of Cordoba, the Spanish city.  The student had used the photograph for a school project by copying it from an online travel website – the website itself was credited in the project but the photographer (and copyright holder) was not.  The project was subsequently published by the school on their website.  Following this, the photographer asserted that a licence to use the photograph had only been granted to the online travel website and, therefore, that uploading the photograph onto the school’s website without authorisation constituted an infringement of copyright by the school.

In its ruling on 7 August 2018, the CJEU affirmed that re-uploading a photograph to a third-party website without the copyright holder’s authorisation could amount to a communication to the public.  Furthermore, if the work is made available so that the public may access it, whether or not the public actually access the work is irrelevant in respect of a communication being made.  Therefore, the school posting the photograph on their website was held to be an act of communication and, crucially, an infringement of copyright.

In respect of the “teaching” exceptions whereby copyright-protected content can be used for educational purposes, the student’s use of the photograph was covered given that the content was used for illustration purposes in a presentation written by her as part of a language workshop.  However, the school’s actions did not come under this exception – perhaps unsurprisingly as the posting of the photograph on the school’s website made it accessible to all visitors to that website and not just to the teachers, pupils and others who were directly connected to the educational activities of the school.

Notably however, this case was distinguished from Svensson and Others v Retriever Sverige AB (C466/12) in which the CJEU held that the posting of a hyperlink to the original work on a website, as opposed to directly re-posting the content itself (as was the case here), would not be tantamount to an act of communication.

Comment

The judgment represents positive news for copyright owners and serves to further clarify the area of digital copyright.

Indeed, the fact that copyright owners’ control over their works won’t be lessened over the internet will alleviate any concerns they may have in respect of this.  Moreover, the judgement also affirms that the unauthorised posting of a photograph protected by copyright on a third-party website would amount to both a communication to the public as well as, potentially, a reproduction.  However, it is important to note that the rationale behind the CJEU’s decision may well apply to other works besides photographs.

Further, as adopted by the European Parliament on 12 September 2018, the amendments to Article 11 of the EU Copyright Directive impose a requirement for search engines and other websites to pay publishers and newspapers every time they use their headlines and links when quoting portions of text from these sources.  Interestingly however, this payment obligation will not extend to the posting of mere hyperlinks which are accompanied by individual words.

Case C-161/17 Land Nordrhein-Westfalen v Dirk Renckhoff EU:C:2018:634 (7 August 2018).