The Regional Court of Hamburg, in a decision of 12 November 2020, had to decide whether a re-pin of a photo on the platform “Pinterest” could constitute a copyright infringement. A re-pin essentially represents a link to the original post in a subsequent new post. To answer this question, the Regional Court of Hamburg applied the principles of the CJEU on liability for links and came to the conclusion: it depends.
The applicant is a professional photographer and specializes in architectural photography. In the course of this activity, the photographer took the picture now in dispute in 2013.
The defendant is engaged in real estate brokerage and operated an account on the social network Pinterest to advertise its activities. On this account, the respondent had now added a photo of the applicant as a "re-pin" to its profile. The photo had previously been made accessible on the platform by a third party, to which the "re-pin" now linked.
The applicant considered this to be an infringement of his rights and, after issuing an unsuccessful warning letter, applied for a preliminary injunction.
The Regional Court of Hamburg granted the application for a preliminary injunction (Regional Court of Hamburg, 310 O 352/20).
With the re-pin, the defendant had infringed the defendant's rights to recognize authorship and to make the work publicly available, Sec. 13, 19a German Act on Copyright and Related Rights.
Re-Pin constitutes an act of communication to a public
With the Re-Pin, the defendant made the work publicly available, since it provided the public with access to the work. In this regard, the CJEU case law had to be taken into account, which requires a communication to a “new” public, in order to amount to infringement. Since the original photograph - to which the defendant had linked - had been made accessible without the knowledge (and therefore consent) of the rightsholder, the act of linking reached a new public.
Presumed knowledge of unlawful publication rebutted?
According to established case law of the CJEU, in cases of links, it is crucial whether the linking party was aware that the linked source had been made accessible unlawfully. In contrast to private users, a rebuttable presumption of such knowledge applies to users acting commercially. Such users must therefore demonstrate that they have made the "necessary checks" to ensure that the linked source was made accessible lawfully. The defendant argued that it had been entitled to rely on the fact that posts on the social medium had only been made accessible lawfully by third parties because in the terms and conditions the users of the platform would grant the corresponding rights of use to the platform. Therefore, the defendant had not carried out any
further checks. The Regional Court did not share this view and found that the defendant could not rely on such a warranty in the general terms and conditions but would instead have to perform its own checks. Due to the lack of necessary checks the presumed knowledge of the unlawfulness had not been rebutted.
Recognition of authorship can come into play
Since the defendant did not credit the author of the photo on the re-pin, there was also an infringement of the right to recognize authorship.
The decision of the Hamburg Regional Court shows once again that not only self-made posts can constitute a copyright infringement but also the distribution of third parties’ posts. The concrete reasoning of the court may be questioned, as according to established case law, making a work available to the public requires that the work itself be made available. It must therefore be stored independently on a server. This is not the case with a link (e.g. German Federal Court of Justice, I ZR 113/18).
A linking of a copyright protected work into a new post, however, can infringe an unnamed right of communication to the public, provided the linked work has been made available unlawfully and provided the linking party knew or should have known that the source is illegal. For users who act with the intention of making a profit, the CJEU has established a rebuttable presumption of such knowledge. Users must therefore prove that they have made the "necessary checks to ensure that the work concerned is not illegally published" (C-160/15, GS Media).
The defendant did not succeed in proving such prior checks in the present case. The Regional Court did not consider it sufficient that the defendant had the expectation that the post had been lawful in a social network. For commercial users on social media, this means that, before it can be linked to, a third-party post must also be checked to determine whether the post a) contains copyrightable works and b) whether this content has been lawfully made accessible . However, it is important not to set the standard for these checks too high. Otherwise, there is a risk of a chilling effect, i.e. refraining from communication, e.g. in the form of a re-pin, for fear of copyright infringement.
The debate about the chilling effect also concerns Art. 17 DSM Directive and was recently discussed by Advocate General Saugmandsgaard Øe in his Opinion on the compatibility of Art. 17 DSM Directive with fundamental rights (see our blog post here). Copyright law remains exciting and we will continue to report on various developments.