The European court has issued an important decision in case C‑161/17 Land Nordrhein-Westfalen срещу Dirk Renckhoff, which concerns the following:
Mr Renckhoff, the applicant who brought the proceedings before the Landgericht Hamburg (Hamburg Regional Court, Germany), is a photographer. Stadt Waltrop (City of Waltrop, Germany) which was originally the defendant at first instance, but which is no longer a party to the dispute in the main proceedings, has responsibility for the Gesamtschule Waltrop (Waltrop secondary school, ‘the school’). The Land of Nord Rhine-Westphalia, also a defendant at first instance, has responsibility for the educational supervision of the school and is the employer of the teaching staff working there.
From 25 March 2009, it was possible to access on the school website a presentation written by one of the school’s pupils as part of a language workshop it organised which included, by way of illustration, a photograph taken by Mr Renckhoff (‘the photographer’) that that pupil had downloaded 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 requested the court with jurisdiction at first instance to prohibit the Land of North Rhine-Westphalia, on pain of a financial penalty, from reproducing/having reproduced and/or making available/having made available to the public the photo and, in the alternative, from allowing school students to reproduce the photo for purposes of posting it on the internet. He also claimed payment of damages from the Land of North Rhine-Westphalia of EUR 400.
Since Mr Renckhoff’s action was upheld in part, the Land of North Rhine- Westphalia was ordered to remove the photograph from the school website and to pay EUR 300 plus interest.
Both parties appealed against that judgment before the Oberlandesgericht Hamburg (Higher Regional Court, Hamburg, Germany), which held, inter alia, that the photograph was protected by copyright and that posting it on the school website was an infringement of the reproduction right and the right to make available to the public held by Mr Renckhoff. That court found that the fact that the photograph was already accessible to the public without restriction on the internet before the acts at issue was irrelevant, since the reproduction of the photograph on the server and the making available to the public on the school website which followed led to a ‘disconnection’ with the initial publication on the online travel portal.
Hearing an appeal on point of law, the referring court considers that the outcome of that appeal depends on the interpretation of Article 3(1) of Directive 2001/29. In particular, that court has doubts as to whether the requirement, laid down in the case-law, according to which the communication to the public concerned must have been made to a ‘new’ public has been satisfied.
In those circumstances, the Bundesgerichtshof (Federal Court of Justice, Germany) decided to stay proceedings and refer the following question to the Court for a preliminary ruling:
‘Does the inclusion of a work — which is freely accessible to all internet users on a third-party website with the consent of the copyright holder — on a person’s own publicly accessible website constitute a making available of that work to the public within the meaning of Article 3(1) of [Directive 2001/29] if the work is first copied onto a server and is uploaded from there to that person’s own website?’
The Court’s decision:
The concept of ‘communication to the public’, within the meaning of Article 3(1) of Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society, 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.
Conclusions: This decision gives clarification on whether if you use a publicly available work from one website to another, this will constitute a copyright infringement. According to the court obviously, this is the case.