The concept of a “communication to the public” under the InfoSoc Directive has given rise to a great many cases yet the meaning remains somewhat uncertain. In a case brought by the German Federal Court of Justice (Bundesgerichtshof), the Court of Justice of the European Union (CJEU) will soon have to add a further piece to the puzzle. Specifically, the question is whether it constitutes a “communication to the public” if a work is first copied from a freely accessible website to a home server and then uploaded to another website (C-161/17 – Córdoba). On 25 April 2018, the Advocate General of the CJEU delivered his Opinion on this case and – surprise –did not consider this a “communication to the public“.
As the Advocate General rightly points out at the beginning of his opinion, the means by which students today learn has changed quite a bit over recent years. Whereas in the past handwritten posters were created and photographs fixed with a glue stick, today presentations are held in classrooms using various software and digital works. Such a presentation was in this case uploaded to the school’s website by a student as part of a presentation for Spanish lessons at the Waltrop School in North Rhine-Westphalia. Among other things, the presentation included a photo of the city of Córdoba, which the student had previously copied from a freely accessible website to her own server.
The rights to the photo are owned by the professional photographer Dirk Renckhoff, who granted a license to the owner of the website. However, the student did not have such a license. The photographer sued the state of North Rhine-Westphalia, as the employer of the teachers employed at the school. In his opinion, the downloading and subsequent posting of the photo on the school’s website violated his right to reproduction and his right to make the work available to the public. In this context, the defendant refers to the case law of the CJEU on Article 3(1) of the InfoSoc Directive. In the case of linking and framing, the CJEU has already ruled several times that generally there is no “communication to the public” in the absence of a new audience (see C-466/12 – Svensson, C‑348/13 – BestWater; C‑160/15 – GS Media). If a work is made freely available to the public online (i.e. without technical protection measures such as paywalls) with the consent of the right holder, the communication is directed at the entire Internet audience. If someone hyper-links to the work, the communication is not directed to a “new” audience.
The Regional Court of Hamburg, which had to rule on the case in 2013, largely found for the photographer (Case No. 310 O 27/12). The Higher Regional Court of Hamburg also came to the conclusion that the defendant’s actions constitute a “communication to the public” (Az. 5 U 38/13). The main reason being that the use in this case differs considerably from a hyper-link. Therefore, the decisions by the CJEU cannot apply.
After both the plaintiff and the defendant filed another appeal, it was now the turn of the Bundesgerichtshof. The Court indicated that it was leaning towards a finding of “communication to the public” and considered the linking rulings as inapplicable. Nevertheless, he decided to submit the question to the CJEU (Case No. I ZR 267/15). The question was limited exclusively to whether or not there was a communication to the public pursuant to Article 3 and thus excluded the reproduction right pursuant to Article 2 of the InfoSoc Directive.
First, the Advocate General, Manuel Campos Sánchez-Bordon, stresses that he assesses the two steps – (1) copying the photo to the server and (2) the subsequent use on a website – in a uniform manner. The Advocate General proceeds in his examination in three steps – although the Bundesgerichtshof likely expects only an answer to the second point.
The Advocate General does not consider there was an act of a communication. In this context, he emphasizes (1) the accessory character of the photo in relation to the presentation on a school’s website, (2) the free accessibility of the photo on the third party’s website and (3) the fact that the student obviously acted without any intention of making a profit when she placed the photo on the website in the school context. Also the second element of the “new public” is missing, according to the Advocate General. In light of the free accessibility of the photo on the third party’s website, it is not understandable to what extent the placement of the photo by the student ensured that a larger number of persons could access the photo.
Finally, the Advocate General argues that the copyright exception for the use for educational purposes laid down in Article 5(3) of the InfoSoc Directive should apply. Although access to the photo on the website was not limited to the school environment, a clear link can be made between the purpose of the lesson and the inclusion of the photograph.
It will be interesting to see whether the CJEU will follow its Advocate General. Whether or not they do, we can only hope that the judges will closely look into all details of what qualifies an act as a “communication to the public“. This is of particular importance given that the European legislator is currently struggling to define such act in the contexts of Article 13 of the Draft DSM Copyright Directive COM(2016) 593. That article shall introduce new monitoring obligations for platform service providers. However, only those providers that actually do perform an act of communication to the public shall be covered by the new law. Therefore, further guidance on the interpretation of this term would be welcome.