To post, or not to post?

Internet users should be cautious following the ECJ’s recent ruling in Land Nordrhein-Westfalen v Dirk Renckhoff (Case C-161/17) that unauthorised re-posting of content on the internet would be an act of communication to the public within the meaning of Article 3(1) of Directive 2001/29/EC and amount to an infringement of copyright.

Following the ECJ’s ruling, re-posting of a photograph is likely to require the authorisation of the copyright owner, even if the owner has already allowed the work to be published without restriction on another website.

Facts:

The ruling from the ECJ followed a referral from a German Court after a secondary school student downloaded a photograph (taken by photographer, Dirk Renckhoff) from a travel website and reproduced it in a school presentation. The presentation was then posted on the school’s website. Renckhoff claimed that the re-posting of the photograph on the school website infringed his copyright. He claimed that he had given right of use of the photograph to the operators of the travel website only.

The case went to the German Bundesgerichtshof Federal Court of Justice, which sought a preliminary ruling from the ECJ as to “whether the re-posting of a copyright work (one 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 would constitute a making available of that work to the public within the meaning of Article 3(1) if the work is first copied onto a server and is uploaded from there to the person’s website”. The German Court was essentially asking whether the concept of communication to the public within the meaning of Article 3(1) included the posting on one website of a photograph previously published without restriction and with the consent of the copyright holder on another website.

Decision:

The ECJ ruled that the concept of communication to the public provided in Article 3(1) did indeed cover the re-posting of a photograph in these circumstances.

The ECJ’s ruling confirms that the concept of communication to the public includes two elements, an ‘act of communication’ of a work and the communication of that work to a ‘public’.  In relation to the first element, it is sufficient for the work to be made available to the public in such a way that the persons forming that public may access it, irrespective of whether they access it or not. In this case, the court explained that the re-posting of a photograph which was initially made freely available on another website, after being downloaded onto a private server must be treated as ‘making available’ and therefore, a conscious ‘act of communication’ (Article 3(1)).

As regards the second element (whether the communication was to a ‘public’), case law has confirmed that ‘public’ means an indeterminate, and potentially large, number of people. In the present case, the Court said ‘public’ could mean all potential users of the website on which the photograph was re-posted (an indeterminate but very large number of readers) and must therefore be regarded as a communication to a ‘public’. The public for the first posting of the photograph was composed solely of users of that first travel website and not of users of the website on which the work was re-posted.

The Court referred to but distinguished Svensson and others (C-466/12) from the present case. In Svensson, communication of a work by including a hyperlink to another website - where the work was available without restriction and with the consent of the copyright holder – was held not to be a communication to a ‘new public’.  The copyright holder was able to exercise control over communication of the work by removing it, rendering the hyperlink obsolete.

In the present case, when the photograph was re-posted, there was a communication of the work to a public that Renckoff had not contemplated when he allowed his work to be posted on the travel website. The re-posting would make it difficult for Renckhoff to exercise control over communication of his work. Even if Renckhoff removed the original communication, the re-posted work would remain available on the website where it was re-posted. The Court said that the re-posting was a communication to a new public. To hold otherwise would mean that the copyright owner would lose control over communication of a work once the work was made available online on the first site and would amount to applying an exhaustion rule to the right of communication (contrary to Article 3(3)). This would also deprive the copyright owner of the opportunity to claim appropriate reward for use of his work. The Court said it was irrelevant that the work was initially published online and made available by Renckhoff without restrictions.

Commentary:

This ruling will be welcomed by copyright owners concerned about their abilities to protect and exploit their Intellectual Property rights and control communication of copyright works online. Those who wish to use third party online material need to ensure they have the proper authorisation and consents in place before such material is used.

For more information, please contact Anna Sowerby.