On 7 August 2018, the EU Court of Justice (“CoJ”) gave a preliminary ruling on the communication to the public right in Article 3 of the InfoSoc Directive.

The facts

Mr Renckhoff is a photographer and one of his photographs appeared on an online travel portal. He claimed to have granted the operators of that portal an exclusive licence to use the photograph in question. A pupil of the Waltrop secondary school downloaded a copy of this photograph from the portal (there being no technical restrictions in place preventing this) and included it in a presentation, with a reference to the portal from which it was downloaded. This presentation was then made accessible on the school website. Mr Renckhoff claimed that the posting of his photograph on the school website infringed his copyright.

The Higher Regional Court in Hamburg decided that the photograph was protected by copyright and that the posting of it on the school website was an infringement not only of the reproduction right but also the communication to the public right.

In the course of an appeal against this decision on a point of law, the German Federal Court of Justice referred a question to the CoJ, seeking clarification on whether the communication to the public right could still apply where the copyright-protected work was freely accessible on one website with the consent of the copyright owner and there is an intervening act of reproduction, as was the case here.

The ruling

The CoJ’s ruling can be summarised as follows:

• The communication to the public right must be interpreted broadly as the principle objective of the InfoSoc Directive is to establish a high level of protection for authors. Recital 23 also makes this explicitly clear in relation to the communication to the public right.
• Following the CoJ’s case law, there are two cumulative criteria for the communication to the public right in Article 3(1), namely (i) an act of communication (ii) to a public. In respect of (i), the posting on a website of a photograph previously posted on another website constituted an act of ‘making available’ and therefore an act of ‘communication’ as visitors to that website are able to access the photograph. In respect of (ii), the concept of ‘public’ requires an indeterminate number of potential recipients implying a fairly large number of people. The act of communication by the school was directed to all potential users of their website which satisfied the ‘public’ criterion.
• As the technical means for each communication was the same (posting on websites), it was necessary to ascertain whether the communication by the school had been to a ‘new public’ (a public not previously taken into account by Mr Renckhoff when he authorised the initial communication to the public on the portal).
• The CoJ emphasised the ‘preventative’ nature of the communication to the public right (which allows copyright owners to intervene to prevent communications), expressing concern that the right would be deprived of its effectiveness in the absence of it finding a communication to a new public. For example, if Mr Renckhoff were to revoke his consent for the portal to prevent all further communication to the public of his photograph, that would not be effective as it would still be accessible on the school website.
• The CoJ also referred to Article 3(3) of the InfoSoc Directive which expressly states that the communication to the public right is not exhausted by any act of communication to the public. If the school was freely entitled to post Mr Renckhoff’s photograph on the school website, that would be the same as applying a rule of exhaustion contrary Article 3(3) and would deprive Mr Renckhoff of the opportunity to monetise that use of his photograph.
• Accordingly, with this in mind, the CoJ concluded that the posting on a website of a photograph previously posted on another website constituted a communication to a new public. The CoJ suggested that the public taken into account by Mr Renckhoff when he consented to the communication of his work on the portal was composed solely of users of that portal and not of users of the school’s website or other internet users. It was irrelevant that the photograph was freely accessible on the portal without technical restrictions. Mr Renckhoff’s rights in Article 3(1) could not be made subject to any formality as the CoJ had already made clear in Soulier and Doke, C 301/15.
• While in Svensson C 466/12 and BestWater C 348/13 the CoJ took an expansive view of the ‘public’ (being all internet users), that rationale could not be applied here for three reasons. Firstly, those cases involved hyperlinks which facilitate the sound operation of the Internet and dissemination of information. In Renckhoff, the communication involved reproduction rather than hyperlinks and so the same considerations would not apply: to do so would fail to have appropriate regard to the fair balance that the InfoSoc Directive seeks to strike between the interests of copyright owners and users, as well as the public interest. Secondly, where hyperlinks – rather than reproductions – are involved, the communication to the public right is not denuded of its preventative nature because the copyright owner can simply withdraw their consent and stop the communication to the public of their work. However, where a reproduction of the work has been posted on another website, it would remain available on that website even if it had been removed from the original website. Thirdly, Mr Renckhoff’s photograph was reproduced on a private server and then posted on the school website which involved a decisive intervention by the school. In Svensson there was no administrator for the site on which the hyperlink had been included.

Comment

Clearly there is a difference between, on the one hand, including a hyperlink on a website to communicate a work to the public and, on the other hand, making a copy of the work on your own server. The latter involves the reproduction right whereas the former does not.

Once again, the spectre of the ‘new public’ requirement in the CoJ’s Article 3 jurisprudence came back to haunt it somewhat, leading the CoJ to rationalise its finding of a ‘new public’ by reference to the preventative nature of the right and the balancing of rights. It is open to question whether this was in fact necessary if, as the CoJ seemed to suggest, Mr Renckhoff’s communication to the public right was not exhausted. Rather than focussing on whether there was a communication to a ‘new public’, the CoJ could have aligned itself with the submission of Mr Renckhoff and the French Government that there was a ‘new communication’ to the public which should have rendered the ‘new public’ requirement unnecessary.