Europe’s highest court has said a German secondary school infringed a photographer’s copyright after it re-published one of his pictures despite the fact the photographer had already given permission for the photo to appear online - a decision likely to have wide implications for future online copyright disputes.
The Court of Justice of the EU (CJEU) said posting a photo requires the permission of the original author, even if they have already given consent for it to appear elsewhere.
In Land Nordrhein-Westfalen v Dirk Renckhoff, the CJEU was asked to rule on the question of whether the inclusion of a work freely accessible to all internet users with the consent of the copyright holder on a new publicly accessible website constitutes a making available of that work to the public within the meaning of EU Directive 2001/29, also known as the InfoSoc Directive.
Nils Rauer, partner at international firm Hogan Lovells, noted that the CJEU had gone in a ’totally different direction’ to that of the advocate-general’s opinion. It said in April that the re-uploading did not constitute a communication to the public. Rauer added that the judgment, which specifies that simply linking to the original work must be distinguished from making a new copy available, is likely to have important implications for future cases.
He added: ‘The concept of reaching “a new public”, which has given rise to a number of court cases already, is thereby further refined.’ He added that the court has drawn a clear distinction between copying and re-uploading content, on the one hand, and hyperlinking on the other.
The dispute was between photographer Dirk Renckhoff and North Rhine-Westphalia school Gesamtschule de Waltrop. Renckhoff authorised the operators of a travel website to publish one of his photographs. A pupil at the school then downloaded the photo to illustrate a presentation and the school published the photo on its website.
Renckhoff brought a case before Germany’s Federal Court of Justice (Bundesgerichtshof) seeking an order prohibiting the reproduction of the photo and damages of €400 (£358). He claimed that right of use was granted only to the travel website and that the school, by re-publishing without his consent, infringed his copyright.
The court then asked the CJEU to interpret the directive. The CJEU said: ‘In the present case, 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”.'