On August 7, 2018, the Court of Justice of the European Union (CJEU) ruled that “the posting on a website of a photograph that was freely accessible on another website with the consent of the author requires a new authorisation by that author”.

With the request for preliminary ruling, the Bundesgerichtshof (Federal Court of Justice, Germany) asked the CJEU to interpret the Copyright Directive (Directive 2001/29/EC), according to which the author of a work has the exclusive right to authorize any communication to the public of her copyrighted work.

The Bundesgerichtshof asked the CJEU whether “the concept of ‘communication to the public’ covers the posting on a website of a photograph which has been previously published on another website without any restrictions preventing it from being downloaded and with the consent of the copyright holder.”

With its judgment, the CJEU answered that question in the affirmative.

First the CJEU reasoned that the posting on one website of a photograph previously posted on another website, after it has been first copied onto a private server, must be treated as ‘making available’ and therefore, it is included in the concept of “act of communication” falling within the meaning of Article 3(1), Directive 2001/29.

Second, the posting of a work protected by copyright on a website other than that on which it was initially communicated with the consent of the copyright holder must generally “be regarded as making available to a new public”.

Interestingly, the CJEU observed that the situation would be different if the protected work was made available by means of clickable link leading to the website on which the initial communication was made. Hyperlinks contribute to the smooth functioning of the internet and may not infringe copyright.

Case C-161/17 Land Nordrhein-Westfalen v Dirk Renckhoff is available at http://curia.europa.eu/juris/liste.jsf?num=C-161/17

For more information Francesca Giannoni-Crystal and Federica Romanelli.