The Court of Justice of the European Union (hereinafter CJEU) has decided on the Judgment of 7 August 2018, (Case C-161/17, Land Nordrhein-Westfalen vs. Dirk Renckhoff), about the interpretation of Article 3(1) of Directive 2001/29/EC in the sense of whether it constitutes making available to the public the insertion in a website of its own, freely accessible, of a work that could be freely consulted by all Internet users on a third party website with the consent of the copyright holder.
According to the case-law of the CJEU (recall judgment of 14 June 2017, Stichting Brein, C-610/15, and judgment of 16 march 2017, AKM, C-138/16), is clear from Article 3(1) of Directive 2001/29/EC that the concept of “communication to the public” includes two cumulative criteria: (i) on one hand, an “act of communication” of a work (the public may access it); and (ii) on the other hand, the communication of that work to a “public” (indeterminate number of potential recipients, moreover, fairly large number of persons).
The procedure which is the subject of the preliminary ruling, began with the publication by a student of secondary education Center in Germany, in the Center website, of a photography own by the plaintiff Mr. Renckhoff, which had been downloaded from another authorised online travel portal.
In this scenario, Mr. Renckhoff brought the proceedings before the Hamburg Regional Court against the Land of North Rhine-Westphalia (responsible for the educational supervision of the school). He claims that the posting of the photograph on the school website infringes his copyright. At first instance, the action was upheld in part and the Land of North Rhine-Westphalia was ordered to remove the photograph from the school website and to pay EUR 300 for damages.
Both parties appealed against that judgement before Higher Regional Court of Hamburg. The 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. Nevertheless, 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, the Federal Court of Justice decided to stay proceedings and refer the preliminary ruling.
Finally, the CJUE held, accordingly with the case-law, subject to the exceptions and limitations down in Article 5 of Directive 2001/29, all acts of reproduction or communication to the public of a work by a third party requires the prior consent of its author, who must be able to put an end to the exercise. The Court also understand that the right of communication to the public is not exhausted by any act of communication to the public or making available to the public, because it would be in conflict with Article 3(3) of Directive 2001/29 (compensation for the use).
Taking account of those elements, it must be held that the posting of a work protected by copyright on one website other than that on which the initial communication was made with the consent of the copyright holder, must be treated as making such a work available to a new public. Therefore, the posting of the photograph made by the student involves the communication of the photograph to a new public. Public that was not considered by the author when the first communication was authorized by him.