A press release of the Court of Justice of the European Union on 7 August 2018 disclosed to the public the Court’s judgment, adopted in the proceedings between Land of North Rhine-Westphalia and Dirk Renckhoff, stating that ‘the concept of “communication to the public”, must be interpreted as meaning that it covers the posting on one website of a photograph previously posted, without any restrictions and with the consent of the copyright holder, on another website’. In the opinion of the Court, this communication requires the obtainment of new permission from the author, as it makes the photograph available for a new public.
In his original action, Dirk Renckhoff photographer requested the competent court to prohibit the Land of North Rhine-Westphalia from reproducing his photo and also claimed the payment of compensation. The photographer had permitted an online travel portal to publish one of his pictures, which later a student of a secondary school, located within the territory of the German federal district of North Rhine-Westphalia, had downloaded from this portal and used in his school paper that was later published on the website of the school as well. The photographer claimed this use and publication to be unauthorized and an infringement of his copyrights, as he had given his original permission to the operators of the online travel portal exclusively.
Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonization of certain aspects of copyright and related rights in the information society declares that authors are vested with the exclusive right to authorize or prohibit any communication to the public of their works. The objective of this Directive was to allow the authors to obtain an appropriate reward for the use of their works.
The ruling of the court claims that the concept of ‘communication to the public’ must be interpreted as meaning that it covers the posting on one website of a photograph previously posted on another website with the consent of the copyright holder; the former act thus qualifies as ‘making available’ and, consequently, as an ‘act of communication’ of the copyright-protected work to a ‘new public’, where new public shall mean the users of the website on which the work was published without permission and who were not taken into account by the copyright holder when he authorized the initial communication to the public of his work.
The Court declared that any use of the protected works by third persons without the prior permission of the author should be considered as an infringement of the author’s rights.
A photograph may be protected by copyright, provided, that it is the intellectual creation of the author reflecting his personality and expressing his free and creative choices in the production of that photograph.
Finally, the Court emphasized that the protected work’s posting on a website (the act of making it available online) conceptually differs from the communication thereof to the public by means of a clickable link referring to another website where the work was initially published; while the fact that the copyright holder had placed no expressed restrictions on the use of the photograph by internet users, has no particular relevance.