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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).

Facts

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.Continue Reading CJEU decides on re-posting of protected content

In a judgment of 18 June 2018, case 24 U 146/17, the Berlin Court of Appeals (Kammergericht Berlin – Court of Appeals) held that collecting societies shall grant the right of use of their picture inventory as thumbnails even if these pictures can be ‘framed’ by third parties and the prospective licensee does not commit to prevent this use by technical means. This case will most likely now go to Germany’s Federal Supreme Court of Justice (Bundesgerichtshof – BGH).

Background

The judgment is based on a legal conflict that occurred in 2013. A German collecting society and its prospective licensee negotiated the granting of the right to use works of visual arts on the licensee’s website as well as websites of the licensee’s partners. In 2014, when a license agreement was almost concluded, the collecting society refused to grant the licensee rights to use because of an earlier judgment of the Court of Justice of the European Union (CJEU) on framing (CJEU, BestWater International, judgment of 21 October 2014, case C-348/13). This judgment stated that framing a protected work that was made available on a publicly and freely accessible website did not constitute communication to the public under European copyright law.

The collecting society did not enter into the agreement as the licensee did not agree to provide appropriate technical measures to protect against framing on its website. The collecting society argued that authors shall be protected against the framing of copyrighted pictures on third parties’ websites without remuneration.

The licensee brought an action for a declaratory judgment in front of the Berlin Regional Court (Landgericht Berlin, 15 July 2017, 15 U 251/16) in 2016 on whether collecting societies may impose the obligation that licensees implement technical measures to prevent framing. The Berlin Regional Court dismissed the action as inadmissible in the first instance.Continue Reading Court of Appeals Berlin decides on the obligation to provide technical protection against framing