On 7 August 2018, the European Court of Justice (ECJ) issued its judgment on a case in which it 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.
The judgement stated that, “by posting on the internet, the photograph was made available to a new public” thus giving rise to the need for new authorisation.
Mr Renckhoff, a photographer in Germany, authorised the operators of a travel website to publish one of his photographs on their website. A pupil at a secondary school downloaded that photograph from the travel website (on which it was freely accessible) in order to illustrate her school presentation. It was then published on the school’s website.
The very unfortunate aspect about this case was that the infringing party was not a hardened criminal techie covertly stealing someone else’s content to make money, but rather a German schoolchild simply completing a class project.
Mr Renckhoff brought an action against the school before the German courts seeking an order prohibiting the reproduction of his photograph. He claimed that the right to use the photograph was given by him only to the operators of the travel website, and therefore the posting of the photograph on the school’s website was an infringement of his copyright. Essentially, he was saying, “This is my image, so I get to decide where it is posted”.
The legal row made its way to the ECJ, with the German authorities stating that they wished to know “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”.
By the judgment on 7 August, the ECJ answered that question with a resounding “yes”.
The press release issued by the ECJ can be found here.
The ECJ went out of its way to stress that hyperlinking to a photograph is quite different from downloading and uploading a photograph to a different website, but it noted that “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, in circumstances such as those at issue, be regarded as making available to a new public”.
You do not need to be an expert in copyright law to realise that this ruling has immense consequences for anyone with responsibility for a website. The implications are huge, especially as copyright holders may now be much more confident in demanding payment from any website that hosts their images. Potentially, that could force millions of websites to remove all their pictures if they are repeatedly hit with demands for payment.
It also means that every single website (even school/college/university websites) will have to ensure it only posts images that it has permission to post. This will undoubtedly require a root-and-branch re-education about what is and is not allowable online.
It is certainly going to be messy, but the decision does represent a gradual clawing back to what used to be considered normal. It never made sense that you could take someone else’s hard work, be it music, videos, articles, or photographs, and do whatever you wanted with it simply because it was quick and easy.
It will be interesting to see what happens next in the law courts. There could be a whole wave of cases where people argue against copyright holders asserting their rights, especially where it is unclear who the rightsholder is, or where it is not known how to get hold of the rightsholder. Many experts in this area believe this is now prime territory for a new internet standard, so it is very much a case of watch this space.
If you would like any advice or information about this area, please contact Justin Sadler at [email protected] or on 0118 958 9711. Justin offers a one hour initial fixed fee meeting at our offices in Queens Road, Reading, Berkshire for £95 inclusive of VAT.