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10.09.2018

EU's top court rules photographer must consent to each new publication of photo

By Emil Weber 

The Court of Justice of the European Union (CJEU) has issued an important judgment, protecting the right of a photographer to communicate his or her work to the public. The ruling on 7 August 2018 further clarifies intellectual property rights in relation to digitally published and freely accessible work in the European Union.

EU’s top court rules photographer must consent to each new publication of photo Cédric Puisney from Brussels, Belgium, European Court of Justice - Luxembourg (1674586821), CC BY 2.0

In late March 2009, the website of Waltrop secondary school in North Rhine-Westphalia (Germany) published a school student’s presentation as part of a language workshop. The presentation contained among others a photograph taken by Dirk Renckhoff, which the student had downloaded from an online travel portal, providing a reference to it. There was no restrictive measure in the travel portal to warn against downloading the photograph.

Photographer Renckhoff claimed in the Hamburg Regional Court that the action was a copy-right infringement. The court partially upheld the claim and ordered the school to remove  the photograph from the school’s website and to pay 300 euros to the author. 

Following both parties’ appeal against the ruling, the German Federal Court of Justice referred the case to European Court of Justice seeking clarifications regarding the concept of “communication to the public” in the 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.

'Authors have exclusive right to prohibit publication'

The top EU court ruled that the directive “provides authors with the exclusive right to authorise or prohibit any communication to the public of their works”.

“(The concept) 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”, it ruled.

According to ECJ, if a website publishes a hyperlink “which leads to a work previously communicated with the authorisation of the copyright holder” the author’s rights are preserved since “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”.

“However, […] the posting on another website of a work gives rise to a new communication, independent of the communication initially authorised”, the CJEU ruled. “As a consequence […], such a work may remain available on the (new) website, irrespective of the prior consent of the author and despite an action by which the rightsholder decides not to communicate his work on any longer on the website on which it was initially communicated with his consent”.

According to the judgement, in the Waltrop secondary school’s case Renckhoff’s work was communicated to a “new public”.

“In the present case, it is clear […] that the user of the work at issue in the main proceedings reproduced that work on a private server and then posted it on a website other than that on which the work was initially communicated”, the judgment said.

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

The Court of Justice of the European Union (CJEU) says that the directive 2001/29, in terms of balancing the right to education and the protection of rights to intellectual property, provides for EU Member States the option of exemptions or limits “for the sole purpose of illustration for teaching or scientific research and to the extent that is justified by the non-commercial purpose to be achieved”.

Case C161/17: Land Nordrhein-Westfalen v. Dirk Renckhoff





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