Summary: The Court of Justice of the European Union (CJEU) has given another ruling on the meaning of “communication to the public” in Article 3(1) of the Copyright Directive (the ‘Directive’). The CJEU ruled that there will be a “communication to the public” (and so an infringement of copyright) where a photograph previously posted and freely available on a website is taken and posted on a second website without the copyright owner’s consent.

In Land Nordrhein-Westfalen v Dirk Renckhoff, Mr Renckhoff authorised a travel website to publish a photograph that he had taken.  No specific restrictions were placed on the photograph being downloaded.  A pupil at a German school subsequently downloaded the photograph to use to illustrate a presentation. The school then posted the image on its website but without obtaining the consent of Mr Renckhoff.  Mr Renckhoff alleged that this amounted to copyright infringement.  The CJEU was asked by the German Federal Court of Justice to consider whether this constituted a ‘communication to the public’ within Article 3 of the Directive. The CJEU was asked:

“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 the Directive if the work is first copied onto a server and is uploaded from there to that person’s own website?”

The CJEU ruled that posting the image on the second website constituted an act of communication to the public and stated that to hold otherwise would amount to creating a rule of exhaustion of a copyright owner’s rights on first publication of a work.  It would also make it more difficult for a copyright owner to exercise its rights under Article 3(1) to prevent further unauthorised publications. The CJEU said it was irrelevant that no restrictions had been placed on the use of the photograph on the first website. 

The CJEU considered that the case of Svensson (where it held that hyperlinking to a copyright work on a website was not an act of communication within Article 3(1)) could not be applied in this case.  Svensson specifically concerned hyperlinks whereas this case did not.  The CJEU was also of the view that the right to hyperlink contributed to the “sound operation” of the internet (by facilitating the dissemination of information), whereas re-posting a copyright work on another website did not contribute to that objective. 

The judgment, whilst perhaps unsurprising, will be viewed as a victory for copyright holders as it provides confirmation from the CJEU that when consent is given for a copyright work to be published on a website, it does not mean that control over that content is then eroded or lost.

Copyright owners will still have the right to prevent re-publication of the work (without consent) on a different site. Website operators and users should therefore be very careful when directly re-posting or hosting content from other websites (rather than providing a hyperlink to such content) as this ruling confirms that, even where the material is already freely available on a website and attribution to the copyright holder is provided, unless the express consent of the copyright holder is obtained, the publication of that content will likely constitute an infringement of copyright, potentially both as an act of reproduction and as a communication to the public.