A photograph which, with the author’s consent, was freely accessible on a website, cannot be uploaded on another website without fresh consent from the same author, the Court of Justice of the European Union (CJEU) has recently confirmed.

The EU’s Copyright Directive endows the author of a work with a number of exclusive rights, including the right to authorise or prohibit any communication to the public of the work. This includes making the works available to the public in such a way that members of the public may access them when and where they choose. The directive sets out an exhaustive list of exceptions and limitations to rights, in order to facilitate the use of protected content in specific circumstances.

The facts of this case were briefly as follows: A photographer authorised the operators of a travel website to publish one of his photographs on their website. A pupil at a secondary school in Germany downloaded the same photograph from the travel website, on which it was freely accessible, in order to illustrate a school presentation. It was then published on the school website.

The photographer filed an action against the school before the German courts seeking an order prohibiting the reproduction of his photograph and claiming damages. He alleged that he gave a right of use only to the operators of the travel website and that the posting of the photograph on the school website was an infringement of his copyright. The national Court seized of the case filed a preliminary reference before the CJEU requesting the latter Court for guidance as to whether, in terms of the Copyright Directive, the concept of ‘communication to the public’ covers the action being contested.

The CJEU observed that a photograph may be protected by copyright law provided that it is the intellectual creation of the author, reflects their personality and expresses their free and crea­tive choices in the production of the said photograph. It then went on to note that, subject to the exceptions and limitations laid down exhaustively in the directive, any use of such a work by a third party without prior consent must be regarded as infringing the copyright of that work.

The objective of the directive is to offer a high level of protection to authors. Authors can, in this way, be rewarded for the use of their works, including when there is a communication to the public of their work.

Referring the facts of the case under examination, the CJEU affirmed that the posting on a website of a photograph previously posted on another website, must be treated as ‘making available’ and therefore an ‘act of communication’ within the meaning of the directive. Such new posting on the internet gives visitors to the school website on which it was posted the opportunity to access the photograph on that website and is hence being made available to a new public. The public taken into account by the copyright holder when he consented to the communication of his work on the travel website is composed solely of users of that website, and not of users of the school website on which the work was subsequently published without his consent.

The CJEU went on to distinguish the posting made on a new site from the making available of protected works by means of clickable link leading to another website on which the initial communication was made. Hyperlinks contribute to the smooth functioning of the internet, the Court noted. However, the publication on one website without the authorisation of the copyright holder of a work previously published on another website with his/her consent does not contribute to the same objective.

The Court concluded by stating that 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 when they originally gave their consent for the first publication. The publication on the school website ought to have been made with the author’s fresh consent.

Intellectual property rights serve to reward those people in society who invest in innovation and creativity, and this for the benefit of society at large. Any action that thwarts such efforts by taking a free ride on the investments made by others must therefore be condemned and halted.

Mariosa Vella Cardona, M’Jur, LL.D., is a freelance legal consultant specialising in European law, competition law, consumer law and intellectual property law. mariosa@vellacardona.com.


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