Did you know that it’s the law that an author has the exclusive right to authorise or prohibit any communication to the public of their copyrighted works? In a recent case, the highest court in Europe, the European Court of Justice (ECJ), had to provide a preliminary ruling on the interpretation of the words “any communication to the public” in the relevant legislation.
The facts of the case
From 25 March 2009, it was possible to access on a German school website a presentation written by one of the school’s pupils which included, by way of illustration, a photograph taken by Mr Renckhoff (‘the photographer’). That pupil had downloaded the photo from an online travel portal (‘the online travel portal’). The photograph was posted on the online travel portal without any restrictive measures preventing it from being downloaded. Below the photograph the pupil included a reference to that online portal.
Mr Renckhoff claims that he gave a right of use exclusively to the operators of the online travel portal and that the posting of the photograph on the school website infringes his copyright. He applied to the relevant court in Germany for an injunction and damages in the amount of EUR 400.
The court partly upheld Renckhoff’s request and ordered the school to remove the photograph and to pay EUR 300 plus interest. This judgement led to an appeal and the case was subsequently referred to the ECJ for an interpretation of the relevant legislation (Article 3(1) of Directive 2001/29).
Why it mattered
The guidance requested from the ECJ was this: whether the concept of ‘communication to the public’, within the meaning of Article 3(1) of Directive 2001/29, must be interpreted as meaning that it covers the posting on one website of a photograph which has been previously published without restriction and with the consent of the copyright holder on another website.
Renckhoff and others argued that “…the communication of a work by means not of a hyperlink, but by a new posting on a different website from that on which it was initially communicated with the consent of the copyright holder, should be treated as a ‘new communication to the public’, in particular, having regard to the fact that, as a result of the making available of the photograph once again, the copyright holder is no longer in a position to exercise his power of control over the initial communication of that work.”
The court’s interpretation
The ECJ agreed and held that the concept of communication to the public within Article 3(1) covered the posting on one website of a photograph previously posted, without any restriction preventing it from being downloaded and with the consent of the copyright holder, on another website.
This is a useful reminder that you must be careful in your use of images found on the internet. As a general rule – if you don’t have permission to use it, don’t use it.
However, the court did confirm that you can post a hyperlink on a website which leads to a work previously communicated with the authorisation of the copyright holder, as the owner can remove it at any time from the website on which it was initially communicated, rendering obsolete any hyperlink leading to it.