The CJEU has ruled that an unauthorised reposting of a photograph on a website which is already publicly accessible, with the consent of the photographer and without restriction preventing it from being downloaded, on another website, can infringe the copyright rights of a photographer (Renckhoff, C-161/17). It is of little importance if, as in the present case, the copyright holder does not limit the ways in which the photograph may be used by internet users.
Article 3(1) of the Copyright Directive includes two cumulative criteria, namely (i) an ‘act of communication’ of a work and (ii) the communication of that work to a ‘public’.
(i) An ‘act of communication’ of a work
The CJEU ruled that the posting on one website of a photograph previously posted on another website with the consent of the copyright holder and without restriction must be interpreted as ‘making available’ and therefore, ‘an act of communication’ within the meaning of Article 3(1). Such a posting gives visitors to the website on which it is posted the opportunity to access the photograph on that website. However, the CJEU noted that it is clear from settled case-law, that 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 (Svensson and Others, GS Media, C‑160/15, Stichting Brein, C‑610/15). In the present case, it was common ground that both the initial communication of the work on one website and its subsequent communication on another website were made with the same technical means.
(ii) ‘Communication of to the public’
The CJEU ruled that the reposting on a website other than that on which it was initially communicated must be regarded as making available to ‘a new public.’ The CJEU noted that the public taken into account by the copyright holder when he consented to the communication of his work on the website on which it was originally published was composed solely of users of that website, and not users of the website on which the work was subsequently published without the consent of the right holder or other internet users.
The CJEU drew a distinction between the communication of a work by reposting it on a website and the communication of such a work by including a hyperlink on a website which leads to another website on which that work was originally communicated without any restriction and with the consent of the copyright holder. Unlike hyperlinks, which contribute to the smooth functioning of the internet, the CJEU stated that publication on one website without the authorisation of the copyright holder of a work previously published on another website with the consent of that copyright holder does not contribute, to the same extent, to that objective. The CJEU has previously held, in particular in Svensson and Others (C‑466/12) and in BestWater International (C‑348/13), that the making available of protected works by means of a hyperlink to another website on which the original publication was made did not result in a communication of those works to a new public.
The CJEU’s decision in this case strives to protect the rights of copyright owners by ensuring they retain control over their works in the digital environment.