CJEU rules that unauthorized re-posting of protected content may be an infringement

The Cordoba photo at issue in Renckhoff

Today the Court of Justice of the European Union (CJEU) issued its last copyright judgment [but also - incredibly - the first copyright judgment of 2018] before the summer break. 

In Renckhoff, C-161/17 it ruled - contrary to the Opinion of Advocate General Campos Sanchéz-Bordona [here and here; ALAI thought it was very bad, and criticized it here] - that in a situation like the one at issue the unauthorized re-posting of a copyright work would be an act of communication to the public within Article 3(1) of the InfoSoc Directive.

Background

As readers might remember, this case had a fairly odd factual background. The national proceedings relate in fact to copyright litigation that a photographer has brought in Germany against a school over the use, by one of the pupils, of copyright-protected material without authorization. 

More specifically, one of the pupils found an image of the city of Cordoba online and used it for an assignment for her Spanish class, providing acknowledgment of the website from which she had downloaded the photograph (though not of the photographer, because the website where the photograph appeared did not provide any). 

Upon finishing her work, she and her teacher uploaded it on the school's website, but the photographer came forward claiming infringement of his copyright in the photograph, and that he had just granted a licence to use to the image to the website from which the pupil had downloaded it.

Litigation has gone all the way up the German Federal Court of Justice, which decided to stay the proceedings and refer this 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 CJEU response

Today the Court answered in the affirmative, noting that:

1. The reposting of protected content freely available with the rightholder's consent on a third-party website is a new act of communication to the public (I'd also add that it is also an act of reproduction, and in fact this has been already established in the national proceedings) and no analogy with linking to lawful and freely accessible content in a Svensson sense may be drawn. Here the point is not - as it was, instead, in Svensson whether there is a communication to a new public, because there is a new communication to the public tout court.
2. Holding otherwise would mean that a copyright owner would lose any control over their work once this has been made available online the first time. This would basically amount to an undue exhaustion of the right of communication to the public, contrary to Article 3(3) of the InfoSoc Directive, and would also be in breach of the principle according to which economic rights are preventive in nature (in a Soulier sense)
3. The fact that a work has been initially published online and made available with no restrictions is irrelevant: holding otherwise would be akin to imposing formalities to the enjoyment and exercise of copyright, and this would go against the prohibition in Article 5(2) of the Berne Convention.

If that was ever possible,
now school may become even more stressful

The Court also recalled that copyright protection in a photograph only arises when the photograph is its author's own intellectual creation, in the sense that it results from the making of free and creative choices and carries the author's personal touch, in the sense clarified in Painer. Readers will remember that the AG doubted that the one at issue would be a copyright-protected photograph. However, Article 6 of the Term Directive leaves EU Member States free to protect sub-original photos.

Implications

Overall, the judgment is good news for copyright owners, in that it gives them reassurance that the control over their works is not reduced over the internet. 

The ruling is also interesting in relation to the practice of certain websites (including newspapers) that directly host third-party video content in respect of which they neither own the rights nor do they have a licence, in lieu of displaying such videos by means of embedded links. While the latter might be lawful (depending on whether the requirements set in Svensson and GS Media are fulfilled), the former might pave the way to a finding of liability. This may be something that we knew already, but that now the CJEU has confirmed.