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A lesson in re-publishing photos by the CJEU

Written by Alex Baker on 16 August 2018

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A ruling by the Court of Justice of the European Union (CJEU) in the case of Land Nordrhein-Westfalen v Dirk Renckhoff has ensured that website operators cannot post copyrighted material originating elsewhere without first obtaining permission to do so from the original publisher.

The case itself involved a school in Germany being deemed to have violated a photographer’s copyright when a picture of his was published on the school’s website as part of a student’s project; the student found the photograph on a travel website.

The court ruled that the school required permission from the photographer to use the photo, since it was decided the original creator had only granted permission to users of the travel website to view his photograph.

In other words, since the school was “making available” the photo for a ‘new public’ – that being a public that was not previously considered by the copyright holders in the initial publication – the court decided it required permission to do so, since this was interpreted as an “act of communication” for the purposes of Article 3(1) of the EU Directive 2001/29.

This is the case even if there are no restrictions on internet users in their actual ability to access or re-publish the material in the first place.

Such control of access to material was deemed essential for copyright holders, as it maintains the value of their work and their ability to receive remuneration for their creative works.

However, the court provided that if the school had instead included a hyperlink to direct users back to the original image’s authorised location then this would have been permissible, because the copyright holder is then deemed to be in a position to exercise his power of control over the communication of that work.

Clearly the importance of acknowledging the original creators of works was reiterated by the court here, and one must take great care when wanting to use online material that will necessarily be made available for (new) public viewing, ensuring that appropriate permission has been obtained before any such use.

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