On August 7, 2018, the Court of Justice of the European Union (CJEU) released its decision in Land Nordrhein-Westfalen v Dirk Renckhoff, where the question was “Does the inclusion of a work — which is freely accessible to all internet users on a third-party website with the consent of the copyright holder — on a person’s own publicly accessible website constitute a making available of that work to the public within the meaning of Article 3(1) of [Directive 2001/29] if the work is first copied onto a server and is uploaded from there to that person’s own website”. The CJEU answered in the affirmative.

The case involved a dispute between a photographer, Renckhoff, and a German school, Land Nordrhein-Westfalen. Renckhoff authorized a third-party travel website to publish his photograph. A student at the German school downloaded the photograph from the travel website and included it in a school presentation. It was then published on the school’s own website. Renckhoff brought an action against the school claiming that the posting of his photograph on the school website without his consent infringed his copyright. The case went all the way to the German Federal Court of Justice, which stayed the proceedings and referred the matter to the CJEU.

Under Article 3(1) the EU Directive 2001/29, the author of a work has the exclusive right to authorise or prohibit any communication to the public of that work. The CJEU held that the unauthorized re-posting of a work is an act of communication to the public, and therefore can amount to infringement. The CJEU went further to distinguish between the use of hyperlinks that link to the original work, and making a new copy available. Where hyperlinks are used, the author can still exercise control over the initial communication of the work, while re-posting on a new website leads him or her to lose that control.

It is now up to the German national court to dispose of the present case in accordance with the CJEU decision.

Summary By: Anna Troshchynsky


18 08 22

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