AG Campos Sánchez-Bordona denies communication to the public in ‘Cordoba’ case

A few months ago, this GuestKat reported about yet another CJEU case that tries to capture the scope of the right of communication to the public within Article 3 (1) of the InfoSoc Directive.

In ‘Cordoba’, the plaintiff’s photograph was freely accessible to all internet users with his consent on a travel-related website. A student of a German school used this picture (without asking for permission) in a written report for her Spanish class. The report was subsequently copied to the school’s servers and from there added to the (public) website of the school.

The plaintiff asked for removal of the image from the school’s website and for damages. The defendant argued 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.

Germany’s highest civil court, the Federal Court of Justice (FCJ) decided to stay the proceedings and referred 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/EC 1 if the work is first copied onto a server and is uploaded from there to that person’s own website?”

The AG’s Opinion

Today, Advocate General Campos Sánchez-Bordona issued his opinion on the case (C-161/17, at the time of writing, the english version is not yet available). His conclusion is that the use of the photograph in this case does not infringe the right of communication to the public within Article 3 (1) of the InfoSoc Directive.

To get to this result, AG Campos Sánchez-Bordona first tests whether there was an act of communication. There was little doubt that the defendant’s actions did constitute such an act in a technical sense. The image was copied to their server and published on the school’s public website. However, the CJEU has established a number of additional criteria one being the indispensable role played by the user and the deliberate nature of its intervention. In its referral, the FCJ affirmed that such a role was played by the defendant. It argued that by copying the report with the picture to the school’s server and publishing it on the website, the student and the teacher took deliberate action to provide visitors of the school’s website access to the content in question.

New subjective criteria

AG Campos Sánchez-Bordona disagreed with the FCJ and took a different approach, introducing several new criteria to the test. First, he determined that with regards to the student’s report, the picture only had an accessory nature. According to his reasoning, the student’s intent was to make the report (and with it the picture) available to the (limited) group of people interested in the report, such as other students and family members. The AG said he could not see an intention to enable access for an audience larger than the audience that was reached on the (travel-related) website where the image was first made available. This GuestKat is not completely convinced by this argument. It fails to recognize that there still was a deliberate act on behalf of the student to make the report (and the image) available to the public, by copying it onto the school’s server and public website. And while the actual audience of the school’s website may be smaller than the original website where the image was published, modern search technology like Google’s image search finds such images and makes them accessible to a vast audience. This would remain so even when the ‘original’ image was removed by the plaintiff. Another thought: what if the student had believed that the school’s website had more traffic than the website she took the image from? What if this was actually the case? How can such a ‘soft’, completely subjective element determine whether the use of a work is infringing or not?

The second new criterion applied by AG Campos Sánchez-Bordona is that of easy and ‘universal’ access to the image, which was made available with the owner’s consent. While in GS Media, the work that was being linked to was made available to the public without the owner’s consent, the case was indeed different here. According to the AG, the correct question to ask here was whether the student knew or should have known that she needed permission from the owner to use the picture. Due to the fact that there was no copyright notice below the original picture and that it was accessible without any technical restrictions, the AG concludes that a person who wants to use such a picture for educational purposes could assume the owner does not object such use. This would establish a fair balance between the interests of copyright owners and ‘normal’ internet users that do not pursue occupational interests.

As a third criterion, the AG mentioned the non-commerical character of the use in question. Citing both the Filmspeler and the The Pirate Bay decisions, AG Campos Sánchez-Bordona highlights the use of the term ‘customers’ in both decisions and the lack of such ‘customers’ in the case at hand.

Presenting an interim result at this point, the AG stated that the defendant’s actions did not constitute an act of communication to the public.

Again, this GuestKat is surprised by the AG’s reasoning. In GS Media, the CJEU established that when hyperlinks are posted for profit, it must be presumed that that posting has occurred with the full knowledge of the protected nature of that work and the possible lack of consent to publication on the internet by the copyright holder. The AG reverses this argument and takes it much further. He states that non-commercial users could assume the copyright holder’s consent when works are available online without technical restrictions or a copyright notice. This could put copyright owners in a difficult position because the legality of a use of their work would depend on various ‘soft’ factors - some of them solely in the head of the user. Even if the copyright owner was certain he had not licensed the use in question, it could still be legal depending on the nature of the use (private/educational/non-commercial/commercial) and the intention or belief of the user.

A new public?

Next, AG Campos Sánchez-Bordona established that no ‘new technical means’ were used, since both images were available on regular public websites. Thus, a communication to the public would require a communication to a ‘new’ public. Again looking at the facts of the case, the AG found that both websites address the same ‘general’ internet public. However, the FCJ’s referral expressed doubts with regards to this point. The FCJ argued that a user who uploads an image to his own website and makes it available plays an indispensable role in the making available of this image. The judges further pointed out that allowing such actions by users would interfere with Art. 3 (3) of the InfoSoc Directive, according to which 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.

AG Campos Sánchez-Bordona found that even though users could assume the copyright holder’s consent under certain conditions (non-commercial / educational use, no technical protection measures restrict access to the work and no copyright notice next to the work), this would not result in an exhaustion of the right of communication to the public. He expressed that it would be the logical consequence of copyright owners’ actions that users who come across a work presented in such an ‘unprotected’ way would assume it is freely available to the public. The AG added that it could be expected of tradesmen to take appropriate steps to protect their content and to express their will against third party uses in order to prevent false assumptions.

Concluding this part of his opinion, AG Campos Sánchez-Bordona stated that copyright owners would not lose control over their works, because they could request the deletion of such content when they believe the use harms them (para 107). While the opinion does not expressly say this, it introduces a ‘notice-and-takedown’ obligation for copyright owners in situations such as the case at hand. It remains to be seen if such an interpretation of Article 3(1) of Directive 2001/29 provides the high level of protection for authors sought by that directive.

Exceptions of Art. 5(3) InfoSoc-Directive

Even though the FCJ did not ask for the relevance of the exceptions of Art. 5, AG Campos Sánchez-Bordona took them into consideration. Art. 5(3) reads:

“Member States may provide for exceptions or limitations to the rights provided for in Articles 2 and 3 in the following cases:

(a) use for the sole purpose of illustration for teaching or scientific research, as long as the source, including the author's name, is indicated, unless this turns out to be impossible and to the extent justified by the non-commercial purpose to be achieved;”

AG Campos Sánchez-Bordona found that the exception should not be limited to ‘teaching’ and teachers, but to uses by students as well.

He went on to state that the author’s name was sufficiently included in the present case, because the student had written ‘Schwarzaufweiss’ below the picture she used (Schwarzaufweiss was the name, but not the URL, of the website from which the image was obtained). According to the AG’s opinion, both the student and the teacher acted diligently, and they could not be blamed for failing to add the photographer’s name to the picture. This is quite an astonishing assertion, since clearly the author was not named and there are no apparant reasons to believe this was impossible.

The three-step-test

Next, the AG turned to Art. 5(5) and the three-step-test and stated that the relevant use would not conflict with a normal exploitation of the work, since the picture was being used for educational purposes and without a profit-making intention. As pointed out by this GuestKat above, Google’s image-search (and other such services) do not care for the purpose of the use, only for the availability of the content. The wide availability of a work on third party websites may very well conflict with a normal exploitation, as can be seen from the ‘Monkey Selfie’ case.

AG Campos Sánchez-Bordona concludes his opinion by looking at the ‘certain special cases’ criterion of Art. 5(5). While he believes that there may be a very large number of similar cases for students and teachers across Europe, he argues that it is not the number of cases that should be considered, but rather the definition and the contours of such cases, so that all of them could be considered as the same ‘special case’, which shall not unreasonably prejudice the legitimate interests of the rightholder.

We are now waiting for the CJEU’s decision in this case, which can be expected in Q3 of 2018. While in the past the CJEU sided with the AG’s opinion in a majority of cases, this has not always been the case.