16.10.2018
ECJ: PHOTOS FREELY ACCESSIBLE ONLINE MAY NOT BE USED FOR ONE’S OWN WEBSITE (C-161/17)
The ECJ's ruling in case C-161/17 (Renckhoff) issued in summer 2018 provided a fundamental clarification of the ECJ's case law regarding the linking of copyrighted works.[1]
I. The main proceedings and the question referred by the Federal Court of Justice
In the present case, a professional photographer sued against the use of one of his photos on a school's website. One of the students at the Waltrop Comprehensive School in North Rhine-Westphalia had downloaded the photograph from a travel website to which the photographer had granted usage rights and inserted it into a presentation. The photograph was freely accessible on the travel website and contained no reference to the reservation of usage rights.
The student's presentation, including the photograph, was then uploaded to the school's website, where it was publicly available. The image was not provided with a copyright notice, so its use as a quotation was not permissible, although this was not further addressed in the decision.
Such a process is not at all unusual – millions of students in Europe will act in the same way every day and will not be aware of the copyright implications.
The photographer claimed that placing his photo on the school's website violated his rights as an author because he had not given his consent for public reproduction.
The defendant (the State of North Rhine-Westphalia) argued that there was no difference between the reproduction of a work by placing it on a website (i.e. 'uploading') and the reproduction of a work by means of a hyperlink or by framing (i.e. 'linking'), since in both cases the audience was any internet user and therefore the work was not being reproduced to a new audience. The plaintiff, on the other hand, argued that uploading to another website must be classified as reproduction, since the rights holder is no longer in a position to exercise control over the reproduction of the work in question.
On a superficial look, it also seems obvious that downloading a photograph from one website and posting it on another website infringes the exploitation rights. Nevertheless, the German Federal Court of Justice (BGH) was hesitant in the main proceedings to assume that the photo was "publicly communicated" by uploading it to the website. This lack of clarity in interpretation becomes clear when one looks at the criteria established by the ECJ for such an act of exploitation:
For a ‘communication to the public’ to be a reality, it is necessary that the communication of the protected work be made using a technical process different from that previously used or, failing that, be made to a ‘new public’, that is to say, to a public not thought of by the copyright holder when he authorised the original communication of his work. It could, however, be argued that in both cases the photograph is for all potential Internet users was available and therefore no reproduction to a new audience took place.
In view of the case law developed by the ECJ in relation to hyperlinks (in particular in Svensson [2], BestWater International [3] and finally GSMedia [4]), the BGH had doubts as to whether such use of the photo falls under the concept of “public communication” and referred the following question to the ECJ for a preliminary ruling: “Does the insertion of a work which is freely accessible to all internet users on another website with the permission of the copyright holder into one's own publicly accessible website constitute making available to the public within the meaning of Article 3(1) of Directive 2001/29 if the work is first copied to a server and from there uploaded to one's own website?"[5]
II. The Advocate General’s opinion
In his ‘Opinion’, the Advocate General, applying the criteria established by the ECJ regarding hyperlinks, concluded that the present case did not constitute a ‘communication to the public’,[6] and represented obiter dictum a very broad interpretation of the exception for teaching purposes (Article 5(3) of Directive 2001/29/EC), which it also considered applicable.[7]
It is also interesting that the conclusion drawn in the final submissions from the ECJ’s previous case law on hyperlinks is that when using without Intention to make a profit, knowledge of the illegality of the use of the work must be proven,[8] and from the absence of any indication of restrictions on the use of the photograph on the original website, it can be concluded that students and teachers were unaware of the protection of the work and the need to seek permission from the copyright holder.[9]
III. The ECJ decision
Ultimately, the question of control was primarily relevant for the ECJ: if an image is merely linked, the rights holder can delete the original image in order to ensure that the image is no longer visible on a website that has a link to it. If, however, the image is downloaded and then uploaded to the other website, the author can no longer prevent the image from being publicly reproduced against his will without considerable effort.
While Sánchez-Bordona was of the opinion that the copyright holder would not lose control over the copy because he could demand its removal from the school’s website, “if he considers that he will suffer harm as a result”,[10] The ECJ ruled, citing Soulier and Doke [11] a much stricter view and stressed again that “the author of a work must be able to terminate the exercise of his rights to use that work in digital form by a third party and thereby prohibit that third party from any future use of that work in digital form, without first having to comply with other formalities."[12]
The Court thus fundamentally established that the previous case law on hyperlinks cannot be applied to the specific case because “the preventive nature of the rights of the rightholder is only safeguarded if the author, if he no longer wishes to reproduce his work on the website concerned, can remove it from the website on which he originally reproduced it, thereby rendering any hyperlink referring to [the work] obsolete’.[13] Furthermore, placing a previously downloaded photograph on a website without the consent of the copyright holder does not contribute to the functioning of the Internet in the same way as hyperlinks [14] and thus, finally, the placing on a publicly accessible website of a photograph previously downloaded from another website constitutes a communication to the public within the meaning of Article 3(1) of Directive 2001/29.
IV. Practical significance
If the ECJ had followed the Advocate General's interpretation, this would have meant that works protected by copyright could, in principle, be used "non-commercially" whenever they were published on the Internet without any reference to their copyright protection and the fact that further use was prohibited by the rights holder (unless it could be proven in the specific case that the user was aware of the illegality of his actions). The ECJ rejected this view.
In practice, this means what should have been clear to every Internet user by now: downloading and then uploading other people's works to one's own website without the consent of the rights holder generally constitutes a violation of the rights to use the work, regardless of whether such use is non-commercial and regardless of whether the downloaded work was accompanied by a reference to the reservation of rights of use. For rights holders, this means what has been the case up to now: in order to be protected by copyright, it is not necessary to inform potential users that certain uses are unlawful.
Excepted from this basic rule are, of course, uses within the (narrow) scope of free uses of the work, such as as a (picture) quotation or within the scope of (e.g.) the Austrian exception for teaching and learning (Section 42g of the Copyright Act).
[1] Before that, in particular ECJ 13.02.2014, C-466/12 (Svensson); 21.10.2014, C-348/13 (BestWater International) and most recently 08.09.2016, C-160/15 (GS Media).
[2] ECJ February 13, 2014, C-466/12 (Svensson).
[3] ECJ October 21, 2014, C-348/13 (BestWater International).
[4] ECJ 08.09.2016, C-160/15 (GS Media).
[5] ECJ 07.08.2018, C-161/17 para. 12.
[6] GA 25.04.2018, C-161/17 para. 129.
[7] GA 25.04.2018, C-161/17 para. 128; to date, there is no case law of the ECJ on the interpretation of the teaching exception, so it is regrettable that this proposal by the Advocate General was not taken up by the Court of Justice.
[8] GA 25.04.2018, C-161/17 para. 81.
[9] GA April 25, 2018, C-161/17 Rz 82f.
[10] GA 25.04.2018, C-161/17 para. 107.
[11] ECJ 16.11.2016, C-301/15.
[12] ECJ 07.08.2018, C-161/17 para. 31.
[13] ECJ 07.08.2018, C-161/17 para. 44.
[14] ECJ 07.08.2018, C-161/17 para. 40.