A fresh judgment from the ECJ of 7 August 2018 deals with the subject of unauhorized re-posting of photographs online and throws the online use of copyright protected works into the spotlight once again.

It is well-known that Internet users frequently share content online without paying much attention to the rights linked to such content. This blurres the lines between private and public property on the Internet creating legal pitfalls. However, the judgment underlines that copyright protection in the EU

remains strong, also in the digital age, that the Internet is not a free-for-use collection of images, videos and other content, and that copyright protection must be equally strong for both digital and tangible works. This has implications for both private and commercial users.

In today’s fast-moving, digital world, decisions are often taken in a heart beat in order to stay ahead of competition, and in many situations it may be very hard for businesses to quickly identify whether certain content found online is protected by copyright or not. This sometimes leads businesses to use such content hoping that no copyright holder turns up with a claim.

Background

The German photographer Mr Renckhoff granted the operator of a travel website an exclusive right to use one of his photographs showing the Spanish city of Cordoba on its website. The photograph was posted on the travel website without any technical restrictions preventing it from being downloaded. A pupil of the Waltrop secondary school in Germany downloaded the photograph from the travel website and used it    to illustrate a school presentation, which was then published on the school website. The presentation included a reference to the travel website, but no mentioning of the Mr Renckhoff. This led Mr. Renckhoff to iniate an action against, among others, the Land

North Rhein-Westfalen (which was reponsible for the educational supervision of the school in question) before the German courts claiming that the posting of his photograph on the school website infringed his copyright.

In the first instance, the Higher Regional Court in Hamburg found that the photograph was protected by copyright and that the posting of it on the school website constituted an infringement of not only Mr. Renckhoff’s reproduction right but  also  his  right  to make his work available to the puclic, i.e. the “communication to the public” right.

On appeal, the German Federal Court of Justice (the Bundesgerichtshof) decided to stay proceedings and refer a question to the ECJ asking whether the concept of “communication to the public” within the meaning of Article 3(1) of the Copyright Directive (Directive 2001/29/EC) covers the posting on a website of a photograph which is already freely accesible to all Internet users on another website where it has been posted with the consent of the copyright holder.