CJEU: unauthorised re-posting of an image can be infringement

The Court of Justice of the European Union (“CJEU”) handed down its first copyright judgment of 2018 this week.

The outcome of the case, Renckhoff, C161/17 wasn’t a surprise to many although it went against the somewhat controversial opinion of Advocate General Campos Sanchez-Bardona (the CJEU almost always follow the AG’s opinion, but not on this occasion).

It involved a photo of the city of Cordoba, in Spain, which was licensed (by the photographer) to be used on a travel website. A German student found the photo online, downloaded it and used it in a school project. On completion of the project the student’s work was uploaded to the school’s website where it was found by the photographer.

The photographer issued proceedings in Germany claiming copyright infringement and seeking damages. Having gone through the German courts a reference was made to the CJEU querying:

Does 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?

There was seemingly only one answer to this query and, thankfully, the CJEU got it right. Copying of a work onto a server and uploading it to a website constitutes a new act of communication to the public (and reproduction) and thus this is an infringement. The fact that the work had already been published online is irrelevant and if it had of been held that the photographer lost all rights to the work once it had been put online then it would have amounted to an exhaustion of rights and would have set a very troublesome precedent.

As ever it is important to ensure that you are happy that you either own or have appropriate licences for all of the content you use both on your website and in hard copy materials. Do not fall into the trap that we so often see of “the web developer put it there, we didn’t think to check”. When it comes to copyright infringement ignorance is no defence.