Córdoba - The CJEU to re-visit the Right of Communication to the Public

Alcázar de los Reyes Cristianos
Readers of this blog will be well-aware of the numerous decisions of the Court of Justice of the European Union (CJEU) on the right of communication to the public within Article 3 (1) of the InfoSoc Directive, e.g. GS Media [Kat-coverage here], Filmspeler [Katpost here] and Ziggo [Katposts here].

While the CJEU did provide useful guidelines on hyperlinks, it is clear that not all questions regarding the right of communication to the public have been answered.

From Germany’s Federal Court of Justice (FCJ) comes another request for a preliminary ruling under the name of ‘Cordoba, C-161/17.

The question is rather simple, and this Kat believes so is the answer:

A work (a picture of the Spanish city of Cordoba) is freely accessible to all internet users with the consent of the copyright holder. Another person makes a copy of the image-file on his own server and uses this copy on his own, freely accessible website.

Does this behavior constitute an act of communication to the public?

Legal Background

Earlier decisions of the CJEU have dealt with linking to and framing/embedding copyright-protected works.  From these decisions we have learned that an act of communication to the public is made when the following criteria are met:

- an act of communication
- the communication of a protected work to a ‘public'

plus either
- a communication using specific technical means, different from those previously used
- a communication, to a ‘new public’

The defendant in the Cordoba case used the last of these criteria to argue that his actions did not constitute a communication to the public. He argued that the image was already available - without technical restrictions - to the general internet public with the owner’s consent. According to Svensson and GS Media, linking to such a work is indeed not a communication to the public. However, the defendant did not merely link to the image and did not merely embed it on his homepage. Instead, he made a copy [the reproduction right is clearly affected here, but not part of the reference] on the server of his own website and made this copy available to the public.

When is a public ‘new’?

In its decision to stay the proceedings, the FCJ argues that such an action should be considered an act of communication to the public that requires the owner’s consent. The judges affirm an act of communication to a public. When analyzing the ‘new public’ criterion, the FCJ disagrees with the defendant. According to the decision, the principles established by the CJEU for cases of linking and framing cannot be applied to cases such as the one at hand. Citing GS Media, the court highlights the importance of hyperlinks for a sound operation of the internet. It then contrasts the case at hand and points out that here, it is not necessary for a sound operation of the internet to be able to copy other people’s content to one’s own website and make it available there. In such cases, intellectual property rights, safeguarded by Article 17(2) of the Charter of Fundamental Rights of the European Union would outweigh the freedom of expression and of information, safeguarded by Article 11 of the Charter.

The FCJ also points out (again citing GS Media and Reha Training) that the CJEU has previously emphasised the indispensable role played by the user and the deliberate nature of its intervention. Such an indispensable role might be missing when a hyperlink is made to a work that is freely available on another homepage. Under these circumstances, the operator of the original website decides whether the work remains available or is deleted. In the latter case, the hyperlink would lead to a dead end. In the case at hand however, the operator of the ‘new’ website, who made a copy of the work on his own server and used this copy for his website, did indeed have an indispensable role. He is in a position to decide if - and how long - the work remains available to the public via his website.

This Kat is exhausted
No exhaustion

Finally, the judges note that according to Art. 3 (3) of the InfoSoc Directive the right of communication to the public shall not be exhausted by any act of communication to the public or making available to the public. If the action of the defendant were to be considered legal, this would go against the high level of protection that is envisaged by the InfoSoc Directive (Recitals 9, 10). Authors and performers could not control the use of their works and would not be able to receive an appropriate reward for use of their works anymore.

To conclude, the FCJ judges already answered the question themselves. There must be a difference between cases that involve the making of a copy of a work, and the subsequent making available of this copy, and cases in which the ‘original’ copy is being linked to. Every other result would severely endanger author’s and performer’s rights and lead to de facto exhaustion of the Art. 3 rights.
Córdoba - The CJEU to re-visit the Right of Communication to the Public Córdoba - The CJEU to re-visit the Right of Communication to the Public Reviewed by Mirko Brüß on Friday, January 12, 2018 Rating: 5


  1. Yup, the Court is going to find it easy to say to your children surfing the internet and using what they find to do their homework makes them and/or the school liable because they are under age but then the school is run by the Lander -so they must pick up the tab. All for some photographer who click baits his bog standard photo out there on the internet. (Is it even an original work under some MS's laws?) Let's police the schools. Let's add to what teachers do. Dead easy -so open and shut a case.

    There is so much wrong with this reference, the punctilious approach of German Courts in their pettiness ( a drawback of cheap access to justice is crap cases) and over enforcement , this case, the appalling development of communication to the public by bad references and the way it will be used by the righteous rightsholders to stop people doing normal things which might just be a fundamental right.

  2. thank's a lot. Are there official EU documents about that? (FCJ judgments are only in German, I suppose)

  3. Dear Lorenzo, the only documents that are available so far were linked to above: http://curia.europa.eu/juris/document/document.jsf?text=&docid=192762&pageIndex=0&doclang=EN&mode=req&dir=&occ=first&part=1&cid=483947

  4. @Goestoofar: I understand why you believe the (supposed) outcome of the case at hand appears to be "unfair". But what is the alternative? Your point of view would result in photographers (and all other creators) relying on pay-walls and other technical protection measures. For if they did not "protect" their works by such means, your proposal would in essence put all works in the public domain once they were published on the internet with the author's consent. That certainly can't be right.

  5. I think what Goestoofar is trying to say is the following;

    your post invites the CJEU to rubber stamp the German Court's analysis; never a good thing-why refer?

    the better argument as to why this has been referred is that the German Court does appear to have doubts that the outcome could be so clear cut and is inviting the CJEU to say surely not.

    the CJEU is invited to find a way out out of its own case law. Otherwise there would be fairly serious consequences for the vast majority of normal internet users who would be put at risk of liability.

    there is scope in the case law to get out of this mess now;


  6. Mirko Brüß said...

    " your proposal would in essence put all works in the public domain once they were published on the internet with the author's consent. That certainly can't be right."

    Why not?

    No one forces anyone to publish anything anywhere.

    If one makes a conscience choice to put something into the stream of commerce in a manner KNOWN to have such far reaching publication to such a large audience, it should not come as a surprise that such a decision to publish in that manner carries with it known exhaustion consequences.

    Don't like it? Don't use that publication path.

    No one should expect anything different - the Internet - and the choice to use that medium should not be separated into "undesired" consequences that are part and parcel of that particular medium's structure. The value of the Internet is the very thing that is being sought to be (artificially) constrained. That path only leads to trouble.

  7. Put yet another way, the IPKAT advocates absolute freedom for the copyright holder and limited freedom -even worse-liability for the child and the school in respect of the pursuit of another freedom -that of expression. Not to mention the freedom of arts and sciences -guaranteed by the German constitution and the Charter.

    Perversely, if the child had parodied the photo within the boundaries of taste that would have been OK.

  8. I disagree.

    "No one forces anyone to publish anything anywhere."

    Well yes, this much is true. But there are many talented, hard-working creators out there that (try to) make a living off their work. Your proposal would force more and more content behind pay-walls and technical protection measures. How would this advance arts and culture and the public good?

    You appear to be missing that according to CJEU jurisprudence, the image in question could have been (legally) used by the student without asking for permission by merely linking to it or embedding/framing it (see Svenson, Bestwater). Also, there are many pictures available under the CC0 license, where the artist has chosen to put his work in the public domain. Your proposal would take this choice away from creators, unless they decide to "hide" their works from the public...


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