On 7 August 2018, the Court of Justice of the European Union (“CJEU”) has released another judgment (surprisingly its first copyright judgment of 2018) on the interpretation of the right of communication to the public (case no. C-161/17 – “Judgment”). The CJEU held that the unauthorised re-posting of copyright protected works may constitute an act of communication to the public under Article 3(1) of Directive 2001/29/EC (InfoSoc Directive).
The fact pattern was very specific. A copyright protected photograph of the city of Cordoba was uploaded to an online travel portal with the consent of the photographer. The photo was freely accessible without any restrictive measures preventing it from being downloaded. A student downloaded the photograph and used it for a written assignment, which was then uploaded to the school’s website.
The photographer brought the underlying main proceedings before the German courts claiming copyright infringement. The German Federal Court of Justice (Bundesgerichtshof) referred the case to the CJEU and asked whether the posting on one website of a photograph that has been previously published without restriction and with the consent of the right holder on another website qualifies as communication to the public.
Opinion of the Advocate General
The Advocate General Sánchez-Bordona (“AG”) took the view that the use of the photograph in this case does not infringe the right of communication to the public. He argued that both the school’s website and the online travel portal addressed the same general internet public. Considering that the original upload was accessible without technical restrictions or a copyright notice, the AG concluded that internet users could assume the right holder does not object to further uploads of the work.
The AG suggested a ‘notice and takedown’ procedure in which right holders have to actively opt out of the use of protected works by means of downloading and uploading.
Judgment of the CJEU
The CJEU has not followed the AG opinion. It held that re-posting a protected work, by means of downloading it from a freely accessible website, copying it onto a private server and uploading it to a third website, must be treated as making available and, therefore, a communication to the public.
First, the CJEU reiterated that a high level of protection for creators is necessary, allowing them to obtain an appropriate reward for the use of their works. Thus, the right to communication to the public must be interpreted broadly.
Second, the CJEU explained that under settled case law, a communication to the public requires either that the work was published by technical means, different from those previously used, or addressing a “new public” that the right holder has not already taken into account in the course of the initial posting on the internet. The CJEU noted that as both publications were made available on websites, the same same technical means were used. Further, it ruled that the photograph has been published to a new public. In this respect, the CJEU argued it was irrelevant that the photo was initially published without restrictions. A respective obligation would cause undue formalities to the enjoyment of copyright. In addition, the CJEU took the position that holding otherwise would deprive right holders of any control over their work posted on the internet.
The CJEU also drew a distinction between its case law on linking and framing, as laid down in Svensson, BestWater and GS Media, and downloading and re-posting works. The CJEU previously held that linking to a freely available work that has been published with the consent of the right holder is not a communication to the public. However, in the view of the CJEU this case law cannot be applied in the current case. The CJEU noted that while hyperlinks and frames contribute to the sound operation of the internet, the publication of a work on a website without the authorisation of the work that has been made available previously on another website with the right holder’s consent does not contribute to that objective.
The Judgment, generally, is good news for creators. It provides assurance to right holders that they will maintain control over their works even if they have not expressed their will against third-party uploads.
However, the Judgment is, like the CJEU’s previous case law on hyperlinking and framing, policy-driven. The judgments are case-by-case decisions that can barely be generalised. Thus, the Judgment, once again, highlights that the right to the communication to the public should be updated and clarified by the legislator.