• School pupil uses a photo from the internet as part of a school project
  • School chooses to publish the pupil's report on its website
  • CJEU interprets the scope of 'communication to the public' in the context of the posting on one website of a photograph previously posted, without any restrictions, on another website

What's it about?

A school pupil in Germany prepared a presentation which included, by way of illustration, a photograph of the city of Cordoba taken by Mr Renckhoff, downloaded from an online travel portal (Portal). The pupil had also included a link to the Portal underneath the photograph and the Portal did not contain restrictive measures to prevent download. The school placed the presentation on its website. Mr Renckhoff claimed that he had granted a right of use exclusively to the operators of the Portal, and that the posting of the photograph on the school website infringed his copyright.

The Higher Regional Court in Germany held that the photograph was protected by copyright and that posting it on the school website was an infringement of the reproduction right and the right to make available to the public. Land-Westfalen appealed to the Federal Court of Justice, Germany. Proceedings were stayed and the matter referred to the CJEU for a preliminary opinion on the interpretation of 'communication to the public', within the meaning of Article 3(1) of Directive 2001/29.

Why does it matter?

The CJEU held that the posting on one website of a photograph previously posted on another website, after it has been previously copied onto a private server, must be treated as 'making available' and therefore, was an 'act of communication' within the meaning of Article 3(1).

The CJEU also held that the posting of a copyright work on a different website other than that on which the initial communication was made with the consent of the copyright holder must be treated as making such work available to a 'new public'.

It is worth noting that the CJEU also confirmed that including a hyperlink to the initial communication of the work would not have been considered an act of communication to a 'new public'.

Now what?

This decision may seem harsh, given that the copyright infringement in this case was no doubt innocently done. However, this is a reminder to be cautious when copying any images or text from websites.

Land Nordrhein-Westfalen v Dirk Renckhoff, C-161/17