On 7 August 2018, the Court of Justice of the European Union (the “ECJ”) delivered its first copyright judgment of 2018. The ECJ held in case C-161/17, Renckhoff, that the unauthorised re-posting of a copyrighted work is an act of communication to the public under Article 3(1) of Directive 2001/29/EC of 22 May 2001 on the harmonisation of specific aspects of copyright and related rights in the information society (the “InfoSoc Directive”).
The case arose after a German photographer had brought an action against a school for the unauthorised use of copyright-protected material. The unauthorised use related to an image found online by one of the pupils. The pupil used the image for an assignment with a reference to the website from which the photograph had been downloaded (“the original website”). Since the original website did not mention the name of the photographer, the reference made by the pupil only referred to that website and not to the photographer. Once finalised, the assignment was uploaded on the school’s website by the pupil and the teacher. The photographer claimed infringement of his copyright in the photograph since he had granted a license to use the photograph to the original website only.
Faced with the issue of the publication of the photograph by the school, the German Federal Court of Justice referred a preliminary question to the ECJ as regards the interpretation of Article 3(1) of the InfoSoc Directive. Article 3(1) of the InfoSoc Directive provides that EU Member States should grant authors the exclusive right to authorise or prohibit any communication of their work to the public.
The ECJ held that the reposting of protected content freely available with the consent of the right holder on a third-party website is a new act of communication to the public. Pursuant to well-established case law of the ECJ, the concept of “communication to the public” includes two cumulative criteria; (i) an “act of communication” of a work; and (ii) the communication of that work to a “public”. In the case at hand, by posting the photograph on the school’s website, the photograph was made available to a new public. Hence, the ECJ found that such posting should be treated as an “act of communication” within the meaning of Article 3(1) of the InfoSoc Directive.
According to the ECJ, holding otherwise would mean that a copyright holder would lose any control over his or her work once it has been made available online for the first time. In such a case, even if the copyright holder decided no longer to communicate his or her work on the original website, the photograph would remain available on the school’s website. To hold that the posting on a website of a work that was previously communicated on another website with the consent of the copyright holder does not constitute making available to a new public would amount to applying an exhaustion rule to the right of communication. This would infringe Article 3(3) of the Infosoc Directive pursuant to which such a right is not exhausted by unauthorised acts of communication to the public or making available to the public. Such findings would also deprive the copyright holder of the opportunity to claim an appropriate reward for the use of his or her work.
In its reasoning, the ECJ declared it irrelevant that the copyright holder had not limited the ways in which internet users could use the photograph published on the original website. Deciding otherwise would impose an undue burden on the exercise of the copyright by its holder.
The ECJ therefore concluded that the posting of the photograph on the school’s website was an act of communication to a new public that required the consent of the author.
The ECJ added that the exception to both the reproduction and communication rights provided for by Article 5(3)(a) InfoSoc Directive when the work is used for the sole purpose of illustration for teaching or scientific research, did not apply to the case at hand. Indeed, the ECJ insisted that its findings were not based on whether the photograph used by the pupil was educational in nature, but on the fact that the posting of that work on the school website made it accessible to all the visitors to that website.
By Thibaut D’Hulst and Eléonore Waterkeyn
