Copying an image from a website and using it for one’s own purposes, e.g. the illustration of a memo which eventually happens to be uploaded to another website – this happens a hundred times every day. However, such conduct is a copyright infringement. This is the clear answer the Court of Justice of the European Union (CJEU) has just given in a truly remarkable judgement (judgement of 7 August 2018, C-161/17 – Córdoba). The judges confirm both cumulative criteria which form a communication to the public of a copyrighted work, namely an “act of communication” and a communication facing towards the “public“. Accordingly, copying and re-posting requires adequate authorisation by the right holder.
In its judgement, the CJEU draws a clear distinction between re-posting of a copy and placing a hyperlink to the original work. The latter does not, under normal circumstances, form an act of communication to the public. The first does, triggering claims for injunctive relief and damages. It is fair to say that with Córdoba the CJEU has handed down yet another landmark decision in the field of digital copyright.
The case originates from Germany. The German Federal Court of Justice (BGH) suspended the respective proceedings in 2017 and submitted a question to the CJEU regarding the interpretation of European copyright law, more specifically Article 3(1) of the InfoSoc-Directive 2001/29. This article deals with the concept of “communication to the public“.
The facts in a snapshot: Photographer Dirk Renckhoff had taken a photo of the city of Córdoba. This photo was – with the photographer’s explicit permission – featured on the website of a travel agency. No technical access restrictions were implemented. A school student copied the photo from the website and used it as illustration for a school thesis. The paper eventually ended up on the school’s website. Again, everybody could access the paper and thereby the photo.
Mr Renckhoff, referring to his copyright, objected to the unauthorized use of his work. He claimed the infringement of his right of reproduction pursuant to Sec. 16 of the German Copyright Act (UrhG) as well as his right to make available the work to the public online (Sec. 19a UrhG).
The Regional Court of Hamburg as well as in the second instance the Hanseatic Higher Regional Court decided in favour of the plaintiff. In third instance, the BGH addressed the following question to the CJEU:
“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 Opinion by the Advocate General
On 25 April 2018, the Advocate General published his opinion on the case. He denied the requirements for the “communication to the public” because of (1) the accessory character of the photo in relation to the presentation on a school’s website, (2) the free accessibility of the photo on the third party’s website (and therefore no new public) and (3) the fact that the school student obviously acted without any intention of making a profit (see blog post). The opinion was heavily debated and everyone eagerly looked forward to what the CJEU would say.
The CJEU does not follow the Advocate General, but affirms a communication to the public within the meaning of the law. The judges first clarify that uploading a copy of a work originating from a website to a new website is an “act of communication“. This act is also addressed to the public, as it appeals to a new audience. A right holder who authorizes the upload to the original website has in mind only the Internet users visiting this very website. His authorisation is therefore limited. This is the case regardless whether technical access restrictions are implemented or not. Unlike the distribution of a physical work – such as a DVD or other media carrier – the intangible upload of a work to the net does not lead to the exhaustion of the copyright. This is different only in regard to computer programmes which are subject to a specific legal regime.
The CJEU clearly distinguishes the present scenario of re-posting from the use of hyperlinks which merely reference the copyrighted work. The latter have already been subject to several well-known decisions. With regard to hyperlinks, the CJEU has always denied the communication to a new audience (see for instance Svensson, C-466/12, BestWater, C-348/13, and GS Media, C-160/15). Only if technical access restrictions – such as a paywall – are unlawfully circumvented, placing a hyperlink may be deemed a communication to the public.
It is worth noting that the CJEU expressly declares that case law on hyperlinks cannot be transferred to cases of re-posting of copyrighted works. The latter is a stand-alone act of communication, decoupled from the availability of the work on the original website. Therefore, re-posting content requires separate authorization by the rightholder. Moreover, the court emphasises that hyperlinking is deemed fundamentally essential to the overall functioning of the net, whereas copying and re-posting digital content are not.
After a number of cases on the subject of communication to the public, which the CJEU ruled upon with some kind of creativity, we now see a judgment which rests on straightforward reasoning and convincing argument. Copying and re-posting content is a communication to the public. Placing a photo on a specific website does not lead to the exhaustion of the copyright therein. This is the case whether technical access protection is implemented or not. Those who copy the work from the original website and re-post it elsewhere require authorisation, i.e. a license as such conduct is different from simply placing a link referencing the original work.
Finally, with regard to the educational context of the matter, the CJEU rightly points out that the law provides exceptions and limitations of copyright which allow the use of works for the purpose of illustration for teaching or scientific research without the author’s explicit consent. A balance of interests is therefore possible without artificially limiting the concept of communication to the public.
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