According to the ECJ, re-posting a content in the absence of the author’s consent infringes copyright

By judgment of 7 August in case C-161/17, the EU Court of Justice (ECJ) dealt with a very frequent phenomenon nowadays: the re-posting of contents on webpages other than those on which they were originally published. With the decision in question, the Court clarified that, in the case of contents protected by copyright, such an activity requires the authorization of the author, whose copyrights are otherwise infringed.

The dispute at the basis of the decision was initiated in Germany by a photographer whose photography, which he had given to an online travel portal, had been downloaded from there by a student who had inserted it into his own school project and then published it on the school website. The photographer complained that this breached his exclusive right to communicate his works to the public, pursuant to Article 3 (1) of Directive 2001/29: “Member States shall provide authors with the exclusive right to authorise or prohibit any communication to the public of their works, by wire or wireless means, including the making available to the public of their works in such a way that members of the public may access them from a place and at a time individually chosen by them”. The German judge handling the case required a preliminary ruling from the ECJ asking whether “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”.

In response, the CJEU firstly stated that the notion of “communication to the public” must be interpreted broadly. It consists of two elements: an act of communication and a public. For there to be a communication act “it is sufficient, in particular, that a work is made available to a public in such a way that the persons forming that public may access it, irrespective of whether or not they avail themselves of that opportunity”; and the posting on one website of a photograph previously posted on another website, after it has been previously copied onto a private server, must be treated as “making available” within the preceding meaning. As regards the notion of “public”, the Courts pointed out that this “refers to an indeterminate number of potential recipients and implies, moreover, a fairly large number of persons”. The users of a website surely fall within this definition.

Nevertheless, the ECJ recalled, “in order to be treated as a ‘communication to the public’, the protected work must be communicated using specific technical means, different from those previously used or, failing that, to a ‘new public’, that is to say, to a public that was not already taken into account by the copyright holders when they authorised the initial communication to the public of their work”. In this case, the Court noted, the technical means used for communication via the second website are obviously the same used on the authorized website. However, the public, given by the users of the second website, is different, and therefore ‘new’. There is therefore a communication to the relevant public according to the aforementioned legislation, which the author of the work has the right to authorize or prohibit.

The Court pointed out that this hypothesis is different from the one addressed in the Svensson case (C-466/12, mentioned inter alia here on this blog), which considered lawful the publication, on a website, of a link to another website in which the work was published with the permission of the author. In that case, in fact, the author’s right to revoke the authorization to the publication was not undermined; in this case, instead, if the author wanted to end the communication of his work on the website initially authorized, the work would remain available on the website on which the work was re-published. Moreover, whilst in the Svensson case the party in question, alias the operator of the site on which the link was published, did not provide any intervention for the public to benefit from the linked work, in this case the student had materially downloaded the photograph on his own private server and then uploaded it into his own project on the school’s website.

The Court also recalled that Article 3 (3) of Directive 2001/29 specifies that the right of the author to authorize or prohibit the communication of his work to the public is not exhausted by any act of communication to the public. To the contrary, “to hold that the posting on one website of a work previously communicated on another website with the consent of the copyright holder does not constitute making available to a new public would amount to applying an exhaustion rule to the right of communication”. In addition to the fact that it would be contrary to the abovementioned Article 3(3), this rule would deprive the copyright holder of the opportunity to claim an appropriate reward for the use of his work on the second website.

The Court therefore concluded that “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”.