Posting of a work already accessible on one website on another website constitutes communication to the public

C-161/17

Renckhoff

Copyrights: Communication to the public

07 Aug 2018

The matter at hand

A student of a secondary school in the German city of Waltrop used a photograph (of a bridge in the Spanish city of Cordoba) for a school presentation, without having permission of the photographer Renckhoff. The student had downloaded the photograph from an online travel portal, where it could be downloaded freely without any restrictive measures. A reference to the online portal was included in the student’s school presentation. The presentation itself was uploaded to the publicly accessible website of the school.

Renckhoff, becoming aware hereof, claimed that the copyright on his photograph was being infringed and brought the case before the Landgericht Hamburg (Hamburg Regional Court, Germany) who upheld his action in part. In appeal to that decision before the Oberlandesgericht Hamburg (Higher Regional Court, Hamburg, Germany), the latter granted the claim for copyright infringement, resulting in an appeal on point of law before by the Bundesgerichtshof (Federal Court of Justice, Germany).

The Bundesgerichtshof doubted if uploading the presentation to the website of the school could be considered as a ‘communication to the public’ within the meaning of article 3(1) of the Copyright DirectiveDirective 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. In particular, it questioned whether the requirement of a ‘new public’ had been satisfied, considering that the photograph was publicly accessible on the online travel portal from where it was taken. The Bundesgerichtshof therefore decided to stay the proceedings and refer the case for a preliminary ruling.

The judgment of the ECJ

After considering that the posting on a website of a photograph, which is already publicly accessible on another website, constitutes an ‘act of communication’ (paragraph 21) to the ‘public’ (paragraph 23) using the same technical means as the original communication (paragraph 25), the ECJ goes into the question of whether the requirement of a ‘new public’ has been met. In this regard, the ECJ assesses in particular how the matter at hand compares to its judgment in Svensson (C-466/12), according to which the posting on a website of a hyperlink to a work freely accessible on another website does not constitute a communication to a ‘new public’, considering that the public targeted by both communications consists all potential visitors of the websites concerned, that is so say all Internet users.

The ECJ holds that there are several differences between the matter at hand and the circumstances at issue in Svensson.

First of all, the ECJ notes that if it were held that the copyright holder, who has made his work accessible through one website, did not have the right to act against the posting of his work on another website, this “might make it impossible or at least much more difficult for the holder (…) to require the cessation of that communication, if necessary by removing the work from the website on which it was posted with his consent or by revoking the consent previously given to a third party.” (paragraph 30). This problem does not arise where it concerns hyperlinks, since in that case “it is open to the author, if he no longer wishes to communicate his work on the website concerned, to remove it from the website on which it was initially communicated, rendering obsolete any hyperlink leading to it”. The posting of a work already accessible on one website on another website therefore “gives rise to a new communication, independent of the communication initially authorised”.

Secondly, the ECJ holds that to allow such a posting would amount to applying an exhaustion rule to the right of communication and would therefore not be in accordance with Article 3(3) of the Copyright DirectiveDirective 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, which specifically provides that the right of communication to the public is not exhausted by any act of communication or making available to the public within the meaning of that provision (paragraph 33).

In light of these considerations, the ECJ comes to a different conclusion regarding the requirement of a ‘new public’ than it reached in Svensson, holding that “[i]n these circumstances, the public taken into account by the copyright holder is composed solely of users of the website on which the work was initially posted and not of users of the website on which the work was subsequently published without consent of the right holder” (paragraph 35).

Recognizing that this does not seem in line with Svensson, the ECJ considers that there are several reasons for not applying that case law to the matter at hand. In this regard, the ECJ notes that “unlike hyperlinks which (…) contribute in particular to the sound operation of the internet by enabling the dissemination of information in that network characterised by the availability of immense amounts of information (…), the publication on a website without the authorisation of the copyright holder of a work which was previously communicated on another website with the consent of that copyright holder does not contribute, to the same extent, to that objective”. In addition, the ECJ states that in Svensson the lack of any involvement by the administrator of the site on which the clickable link had been inserted was a relevant factor, whereas in the present case, the user of the work at issue reproduced that work on a private server and then posted it on a website other than that on which the work was initially communicated. “In so doing, that user played a decisive role in the communication of that work to a public which was not taken into account by its author when he consented to the initial communication.”

Having regard to all of the foregoing considerations, the ECJ concludes 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.

Commentary

In its judgment, the ECJ relies heavily on a goal-oriented reasoning, by considering that to hold that the criterion of a new public has not been met, would lead to an outcome which it considers undesirable. Although there is a lot to be said for this position, this does not explain why visitors of a website on which an embedded link is placed to a work published on another website with the consent of the right holder, do not constitute a new public (compare BestWater, C-348/13), whereas the visitors of a website on which that same work is published by posting that work on that website, do. After all, in both cases the initial communication to the public by the copyright holder is to be regarded as directed at all Internet users and in both cases the visitors of the website containing the embedded link or ‘post’ are not directed to the webpage where the original work is placed. The central argument of the ECJ in this respect seems to be that the posting of a work already accessible on one website on another website gives rise to a “new communication, independent of the communication initially authorised”. By doing so, the ECJ seems to have added a new circumstance to be taken into account in the assessment of the criterion of a ‘new public’, namely that of a new, independent communication.