By judgment of 07.08.2018, the European Court of Justice (ECJ) ruled that a photograph lawfully published on a website and freely accessible may not be displayed on another website if a copy of the photograph is made for it (Case C-161 / 17). The judgment of the European Court of Justice is part of a series of decisions that the ECJ has taken in recent years on the conditions under which photographs on the Internet may be presented on third party offers.
In the present dispute, a photographer claimed injunctive relief and damages because one of his photographs, which was published on the website of a travel magazine lawfully with his consent, was published on a school website. After the Hamburg Higher Regional Court upheld the photographer’s complaint, the Federal Court of Justice asked the ECJ for a preliminary ruling whether the insertion of a work freely accessible to all Internet users on a third party website with copyright of the copyright owner would constitute copyright infringement if its own publicly accessible website were to be infringed the work is copied to a server for this purpose.
Development of the case law of the ECJ
At first sight, it does not seem understandable why the question of whether a copy of a work by a third party, which was not entitled to do so by the right holder, constitutes a copyright infringement, should be submitted to the ECJ. The submission of this legal question by the BGH for a preliminary ruling is due to the case law of the ECJ in the past years on copyright infringement on the Internet: The ECJ expressed – to the surprise of some – several times to the question whether the representation of a work on a foreign website by means of linking and framings is allowed. Thus, the ECJ first ruled on 13.02.2014, Rs. C-466/12 – Svensson, that the mere linking to a freely accessible on the Internet work is not a copyright infringement. This decision was taken by the ECJ by order of 31.10.2014, Rs. C-348/13 – Best Water, and made it clear that the reproduction of a copyrighted work, such as a video or a photograph, by means of framing on a third party site is also permitted if the protected work was originally associated with Consent of the copyright holder on the Internet for all freely accessible published. Since this inevitably raised the question of how to judge the cases in which the original publication took place without the consent of the copyright holder, the ECJ ruled on 08.09.2016, Rs. C-160/15 – GS Media BV, that the setting a hyperlink to a work published unlawfully on the Internet is not a copyright infringement if the link creator acts without the intention to make a profit and has no knowledge of the illegality of the origin publication.
The background to this series of rulings of the ECJ is that the ECJ sees “public communication” as given only if there is an “act of reproduction” of a work and its “public” reproduction. A “public” rendition is given only if the work is reproduced either using a technical procedure that differs from the procedure used to date or becomes accessible to a “new public” to whom the copyright owner is entitled under his original public replay of his work. However, the ECJ assumes that the rights holder has considered all Internet users when publishing a work on the Internet, which is subsequently freely accessible.
The application of the principles of the ECJ to the current situation
If the ECJ’s reasoning is based on the facts of its current decision, it is not surprising that in the present case where the photograph was copied to a new server, the ECJ considered public communication or a new public as having taken place. The ECJ is essentially guided by the idea that the person who originally published the copyrighted work legally on the Internet, continue to rule over the dissemination of the work, if referred to this work only in the context of hyperlinking, framing or embedding becomes. In all these cases, the third-party users will no longer be able to access the protected work if the copyright holder terminates the reproduction of the work on the Internet. However, if, as in this case, a copy of the originally lawfully published work is made by a third party, it is no longer up to the right holder to decide whether his work is freely accessible on the internet or not. The CJEU rightly points out that otherwise there would be an exhaustion not intended for publications on the Internet with regard to the work concerned, d. H. once a copyrighted work has been published on the internet, it could be used by third parties almost completely on the Internet. The ECJ also recognizes that this conflicts with the legitimate interests of the authors and right holders in their fair participation in the use of their works.
The original press release can be found here on Noerr’s website.