The reproduction of an educational work, including a photograph, which was freely accessible by every Internet user and already published on an online travel magazine without any restriction of use disclaimer, does not constitute an act of “making available to the public”, if the reproduction is made with acknowledgment of the source and without profit purposes.

This is the conclusion of the Advocate General in the case C-161/17, where the Court is asked to clarify the definition of “making available to the public” (online) and decide whether such definition includes the download of a photograph depicting an urban sight, originally published on a travel website, followed by the reproduction by a student of that same picture on a school work which was then uploaded on the educational institute website.

The Court invited the parties to discuss, during the hearing, about the relevance of the GS Media decision.

The Advocate General’s opinion is that, notwithstanding the factual differences between the present case and said precedent (which was about internet hyperlinks connecting to copyrighted works, photographs in particular, which were made freely available on another website without the initial authorization of the rightsholder), it would be possible to adapt and apply, even in this case, the same principles established by the GS Media decision, especially those regarding the subjective element of a person who does not operate for profit.

And this in consideration, in particular, of two different arguments: the presumption that “those who do not operate for profit usually do not act with full consciousness of the possible consequences of giving open access to their users to a work unlawfully published on the internet”, and the importance of the fact that “every internet user was already able to access to the work”.

He acknowledges, however, that such justifications do not operate when the copyright holders warn the users that the work was “unlawfully published on the internet” and when its access occurred by means of “elusion of technological measures deployed by the website in order to protect the copyrighted work”. This “safe-harbor” is not applicable either when the author warned the subject who tried to reproduce its photograph on the internet that he never gave his consent in that sense. In the present case, however, there was no mention of the original authorship and the picture was already easily accessible.

When the subject operates for profit it is assumed that the uploader operated with full consciousness of the fact that the work was protected and of the lack of consent to its reproduction on the internet. On the other side, when someone operates without the intention of making profits, the rightsholder has to prove that the uploader was conscious of the fact that the reproduction occurred illegally, taking into account all the circumstances and the specific elements of the case.

All things considered, it is the sum of three different factors – the incidental nature of the photograph respect to the school work content, the possibility to access freely to the photograph, which was not followed by any restriction of use disclaimer, and the lack of profitability in the activity conducted by both the student and the teachers – which brings the Advocate General to conclude that the present case does not fall under the definition of “communication to the public” as specified by the Court precedents.

This interpretation implies that there could be a “new” public only when it would be different from the public reached by the initial communication, i.e. when it would be “more extended” than the public that was originally targeted by that communication.

In conclusion, and in summary, the referred principles should be applied in order to have a balance of interests when dealing with the concept of “making available to the public” of copyrighted works, in the sense that the exemption of liability related to the “use for the sole purpose of illustration for teaching or scientific research” (which is granted “to the extent justified by the non-commercial purpose to be achieved”, as per Art. 5, paragraph 3, Directive 2001/29/CE) is opposed to a presumption of liability of the subject who operates for profit purposes.