Just before its summer break, the Court of Justice of the European Union (CJEU) issued its first copyright judgment of the year, underlining the fact that rights are not diluted when rightsholders display their work on the internet. In Renckhoff, C-161/17 it ruled – contrary to the Opinion of Advocate General Campos Sanchéz-Bordona – 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.
The case had a fairly odd factual background. National proceedings relate to copyright litigation that a photographer 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 to the school’s website, but the photographer came forward claiming infringement of his copyright in the photograph, and that he had only granted a licence to use the image to the website from which the pupil downloaded it.
Litigation went all the way up to the German Federal Court of Justice, which decided to stay the proceedings and refer 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 CJEU response
The Court answered in the affirmative, noting that:
- 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 whether there is a communication to a new public, because there is a new communication to the public tout court.
- 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).
- 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.
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.