The posting on a website of a photograph that was already freely accessible on another website with the consent of the author and with no warning of any restrictions on use requires a new authorisation, the Court of Justice of the EU has ruled in a judgment returned on Tuesday 7 August (case C-161/17).
In 2009, a German school in the Land of North Rhine-Westphalia published on its website a report by a pupil that contained a photograph taken by a Mr Renckhoff. Based on the copyright rules, Renckhoff took action against the Land to prevent it from reproducing his photograph, on the grounds that only the operators of the travel website from which the pupil had downloaded the photograph had been given rights of use.
In a judgment that differs from the conclusions of the Advocate General (see EUROPE 12009), the Court has found in favour of Renckhoff.
According to the European Court, notwithstanding the exceptions set out by the directive (2001/29/EC) on copyright, any use of a work by a third party without prior authorisation should be considered an infringement of the holder’s rights.
This means, the Court explains, that posting a photograph protected by copyright on a website other than the one on which the initial communication with the authorisation of the right-holder must be considered as ‘making available’ and therefore an ‘act of communication’ to a new audience.
The Court hence considers that such posting must be distinguished from the making available of protected works by means of a clickable link leading to another website on which the initial communication was made (see the Svensson judgment in case C-466/12; EUROPE 11431).
Finally, the Court considers that it is irrelevant if Renckhoff has not restricted the ways in which his photograph may be used by Internet users. (Original version in French by Mathieu Bion)