Lawyer Alessandro La Rosa
With a decision published on the 7th of August 2018 (case C- 161/17 – Land Nordrhein-Westfalen v. Dirk Renckhoff), the European Court of Justice ruled on the issue whether “the posting on a website of a photograph previously published without any restrictions and with the consent of the copyright holder on another website constitutes a ‘communication to the public’, within the meaning of Article 3(1) of Directive 2001/29”.
The facts of the case underlying the question for preliminary ruling by the Court concerned the publication on a school website of a photograph, which, by way of illustration, constituted part of a workshop organized by a student of the institute, who downloaded it from another website where it was previously published with the consent of its author. The latter then claimed that he gave a right of use exclusively to the operators of the first online portal, while the posting of the photograph on the school website infringed his copyright.
The Court, taking for granted that the posting on a website constitutes an act of “making available”, and starting by saying that “it follows from recitals 4, 9 and 10 of Directive 2001/29 that the latter’s principal objective is to establish a high level of protection for authors”, and that “the concept of ‘communication to the public’ must be interpreted broadly, as recital 23 of the directive expressly states”, takes on the main issue at stake, thus considering whether such a “communication” was made “to a ‘new public’, that is to say, to a public that was not already taken into account by the copyright holders when they authorized the initial communication to the public of their work”.
On this topic, a first observation of the Court (recalling, on this point, its previous judgments of 31 May 2016, Reha Training, C‑117/15, EU:C:2016:379, paragraph 30; of 16 November 2016, Soulier and Doke, C‑301/15, EU:C:2016:878, paragraph 33; and of 14 June 2017, Stichting Brein, C‑610/15, EU:C:2017:456, paragraph 20) deals with the fact that, besides their right to give consent for the communication of their works to the public, “under Article 3(1) of Directive 2001/29, authors have a right which is preventive in nature which allows them 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”.
In the opinion of the Court, then, “Such a right of a preventive nature would be deprived of its effectiveness if it were to be held that the posting on one website of a work previously posted on another website with the consent of the copyright holder did not constitute a communication to a new public. Such a posting on a website other than that on which it was initially posted might make it impossible or at least much more difficult for the holder of a right of a preventive nature to require the cessation of that communication, if necessary by removing the work from the website on which it was posted with his consent or by revoking the consent previously given to a third party.”
In fact, the Court gives considerable value to the circumstance that, in the present case (to the contrary, e.g., of those cases where the work is not newly “re-uploaded” on another website, but it is only “recalled” by means of an hyperlink to the website where it was originally published, as the Court would explain in detail) the copyrighted work would remain available to the public “even if the holder of the copyright decides no longer to communicate his work on the website on which it was initially communicated with his consent”. On this point the Court recalls his judgment of 16 November 2016, Soulier and Doke, C‑301/15, EU:C:2016:878, paragraph 51, to remember that “the author of a work must be able to put an end to the exercise, by a third party, of rights of exploitation in digital format that he holds on that work, and to prohibit him from any future use in such a format, without having to submit beforehand to other formalities”.
A second factor taken into account by the Judges is that “Article 3(3) of Directive 2001/29 specifically provides that the right of communication to the public referred to in Article 3(1) of that directive is not exhausted by any act of communication to the public or making available to the public within the meaning of that provision”, which instead would essentially happen if the posting online of a work, previously uploaded on another website with the consent of its copyright holder, would not be considered as an act of “making available” to a “new public” of that work.
As a third factor the Court holds relevant the circumstance that “that rule would deprive the copyright holder of the opportunity to claim an appropriate reward for the use of his work” (recalling on this point recital 10 of the Directive 2001/29 and its judgment of 4 October 2011, Football Association Premier League and Others, C‑403/08 and C‑429/08, EU:C:2011:631, paragraphs 107 and 108).
Instead, it is not relevant nor convincing, in order to hold the opposite of what is stated by the Court (which, on this point, clearly takes distance from the opinion of the Advocate General), that “the copyright holder did not limit the ways in which internet users could use the photograph”; to that extent the Court recalls that it has already stated “that the enjoyment and the exercise of the right provided for in Article 3(1) of Directive 2001/29 may not be subject to any formality” (the reference is, again, to its judgment of 16 November 2016, Soulier and Doke, C‑301/15, EU:C:2016:878, paragraph 50).
Therefore, the conclusion of the Judges is that “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, in circumstances such as those at issue in the main proceedings, must be treated as making such a work available to a new public. 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.”
The motivation of the Court, however, does not end here. Actually, it seems somehow concerned with the fact that the present ruling may appear inconsistent with the principle – expressed in particular in its judgement of 13 February 2014, Svensson and Others (C‑466/12, EU:C:2014:76, paragraphs 25 and 26), and in its order of 21 October 2014, BestWater International (C‑348/13, not published, EU:C:2014:2315, paragraph 16) – holding that “regarding the making available of protected works by means of a clickable link referring to another website on which the original publication was made, that the public targeted by the original communication was all potential visitors to the website concerned, since, knowing that access to those works on that site was not subject to any restrictive measure, all internet users could access it freely.”
In contrast, again, to what was affirmed by the Advocate General, it holds that it is exactly the different way of “making available” that allows a distinction between the present case and its precedents. Again, the key factor that leads the Court to consider, still upholding its precedents, that in the present case the communication is made to a “new public”, is represented by the preventive nature of the rights held by the authors, which “are preserved, since it is open to the author, if he no longer wishes to communicate his work on the website concerned, to remove it from the website on which it was initially communicated, rendering obsolete any hyperlink leading to it. However, in circumstances such as those at issue in the main proceedings, the posting on another website of a work gives rise to a new communication, independent of the communication initially authorized. As a consequence of that posting, such a work may remain available on the latter website, irrespective of the prior consent of the author and despite an action by which the rightholder decides no longer to communicate his work on the website on which it was initially communicated with his consent.”
It is interesting to note that, in exposing these arguments, the Court considers that the “hyperlinking” system, according to its own jurisprudence, contributes “in particular to the sound operation of the internet by enabling the dissemination of information in that network characterized by the availability of immense amounts of information”, while it could have no relevance the circumstance that the student behavior may constitute exercise of the right to education, since “the findings set out in paragraph 35 of the present judgment, relating to the concept of ‘new public’, are not based on whether the illustration used by the pupil for her school presentation is educational in nature, but on the fact that the posting of that work on the school website made it accessible to all the visitors to that website”.