14 August, 2018

No Free-For-All - Is Posting a Freely Available Image Online Copyright Infringement?

Posting images online, whether it is on your own website or otherwise, is so easy these days and often feels quite harmless. The lack of effort and often consequence for the copying and sharing an image, even if protected by copyright, can lead to what feels like a dissemination near free-for-all on intellectual property on the Internet. With this in mind, where does one draw the line on what is allowed and what isn't, and how do we assert control over any unauthorised sharing, even if your content is freely available on different websites? The CJEU took on this question early this month, and handed down a decision that has prompted a great deal of discussion in the general public.

The case of Land Nordrhein-Westfalen v Dirk Renckhoff concerned a photograph taken by Mr Renckhoff. This picture was exclusively licenced to an online travel portal for use, and had no restrictions on the website where it was posted. In 2009 a school student in Waltrop (within the Nord Rhine-Westphalia region of Germany) used the image in their presentation, which was subsequently posted on the school's website. Mr Renckhoff subsequently sued the school district for copyright infringement for the posting of the image on the school's website.

Only one question was referred to the CJEU, which asked "…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".

As many will be aware, 'communication to the public' includes two cumulative criteria that need to be considered: (i) an act of communication; and (ii) the communication of that work to a 'public'.

The first criterion simply concerns an act where "…a work is made available to a public in such a way that the persons forming that public may access it, irrespective of whether or not they avail themselves of that opportunity". The Court swiftly determined that the posting of the work on the school's website did amount to 'an act of communication'.

The danger of copyright infringement made the creation of
school presentations all the more thrilling
In terms of the second criterion, a 'public' "…covers all potential users of the website on which the photograph is posted, that is an indeterminate and fairly large number recipients". Again, the Court quickly determined that the act had been a communication to a 'public' under this definition. However, the Court did note that for the act to be an infringing 'communication to the public' it needs to be done so to a 'new public', i.e. "…a public that was not already taken into account by the copyright holders when they authorised the initial communication to the public of their work".

Looking at the right to prevent the unauthorized communication of works, the Court saw that "…[s]uch a right of a preventive nature would be deprived of its effectiveness if it were to be held that the posting on one website of a work previously posted on another website with the consent of the copyright holder did not constitute a communication to a new public". The Directive, under Article 3(3), does not exhaust the rights held in works once they have been communicated to the public by the rightsholder or an authorized third-party.

Ultimately they concluded that the communication of a work in a separate website would amount to a communication to a new public under the Directive, as the publication of the work was only intended for the users of the authorized website, and no other third-party sites. Limitations on the copying or use of the particular work are irrelevant in this assessment.

The Court did, however, have to navigate the issues set by their earlier decision in Svensson and BestWater (discussed more here and here), which allowed for the sharing of links to content that was freely available, as the intended public for those works was, in essence, the entirety of the Internet.

The cases were distinguished as they related to hyperlinks, and not copies of available works. The former is required for the proper operation of the Internet, whereas works themselves would not contribute to this aim to the same extent. Hyperlinks can also be disabled by the removal of the website it links to; whereas once an image has been copied elsewhere its removal is much harder. The Court therefore clearly emphasised the preventative nature of their conclusion, rather than the imposition of arbitrary preclusions to the sharing of content (innocent or not).

In short, the Court concluded that "…the concept of ‘communication to the public’… must be interpreted as meaning that it covers 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".

The decision is somewhat unsurprising, as the exhaustion of rights through the posting of any content on an authorized website would be devastating to many creating industries. The Court upheld the rightsholder's rights in their works, even if posted innocently on a school website. The case did briefly discuss exemptions relating to education and research, and one has to note that this was not a big part of the case and therefore not discussed at length. Any such use as in the case would most likely be fair use; the Court simply made sure that no rights were exhausted even if this were the case.

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