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Copyright ruling challenges internet practices on posting photos

Website operators cannot lift copyrighted media lawfully posted elsewhere on the internet without first obtaining the rights holder's permission to publish the image themselves, the EU's highest court has ruled.08 Aug 2018

The judgment issued by the Court of Justice of the EU (CJEU) on Tuesday means the creators of media content have the right to choose which websites their content appears on and to receive payment from websites that publish their work.

The ruling applies even if the media has been published elsewhere online with the rights holder's permission and if there are no technical restrictions preventing the media from being downloaded by others.

It is not enough for website operators to include a reference to where they sourced media from when publishing that media on their own sites. However, the CJEU confirmed that website operators can link to copyright-protected media published with the rights holder's permission elsewhere online without having to gain permission from, or pay, the rights holder to do so.

The CJEU's ruling centred on the meaning of 'communication to the public' under EU copyright laws and concerned a dispute over a German school's publication of a copyrighted image on its website. A student at the school had downloaded the image from another website, where it had been published with the permission of the copyright owner, but the school did not obtain the copyright owner's permission before posting the image on its own site.

According to the ruling, photographer Dirk Renckhoff claimed that he gave the operators of an online travel portal exclusive rights to use one his images and that the school infringed his copyright by posting that photograph on its website without his permission.

Under EU copyright laws, the authors of copyrighted works have the exclusive right to control the "communication to the public of their works" and "the making available to the public" of their works. It is generally an infringement of those rights if others communicate or make available content without permission from rights holders to do so.

EU case law has established that, to be said to have communicated copyrighted works to the public, businesses must be shown to have communicated them to a 'new public'. That term means a different audience from the one that rights holders originally directed their material at when publishing their copyrighted content.

The CJEU said that previous rulings have already determined that copyright owners have the right, under copyright law and subject to the exceptions and limitations in that law, to "intervene between possible users of their work and the communication to the public which such users might contemplate making, in order to prohibit such communication".

It said that if it ruled in favour of the view that websites could post, without permission, copyrighted works previously communicated on another website with permission, then it would amount to "applying an exhaustion rule to the right of communication" and would "deprive the copyright holder of the opportunity to claim an appropriate reward for the use of his work".

"The posting of a work protected by copyright on one website other than that on which the initial communication was made with the consent of the copyright holder … must be treated as making such a work available to a new public," the CJEU said. "In such circumstances, 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 is composed solely of users of that site and not of users of the website on which the work was subsequently published without the consent of the rightholder, or other internet users."

"It is irrelevant … that, as in the case in the main proceedings, the copyright holder did not limit the ways in which internet users could use the photograph," it said.

Iain Connor, intellectual property expert at Pinsent Masons, the law firm behind Out-Law.com, said: "This case is vital for copyright holders as it confirms their ability to control access to their works and to receive payment for their creative endeavours. Had the case gone the other way, it would have meant that the first publication of an image on a website would have destroyed all the value in the copyright by allowing others to take the work and use it without permission."

"This case confirms the vital distinction between providing a link to copyright material which is allowed and reproducing work on a third party website which is not allowed on the basis that the copyright owner can control who has the right to view the copyright work by removing the hyperlink at anytime," he said.