On 7 August 2018 the Court of Justice of the European Union (CJEU) confirmed that the reposting online of a photograph from another website, without the copyright owner’s consent, constitutes an infringement. This will be the case even if there were no restrictions on accessing or copying the photograph and the copyright owner gave their consent to the original posting.
Copyright owners should welcome this ruling; it confirms copyright owners’ rights to control the communication of works they post online, even if they fail to impose explicit restrictions on the reproduction of those works. However, it underlines the importance for copyright users of obtaining clearances before using online works.
What had happened in the case?
Article 3(1) of the Copyright Directive (2001/29/EC – implemented in the UK by S.20 CDPA) gives copyright owners the exclusive right to authorise or prohibit any communication to the public of their works. However, the meaning of “communication to the public” was questioned in this case, originating in Germany.
A school pupil used an image from a travel agency website in an assignment, which the school then uploaded to their website. Subsequently, the photographer came forward claiming that the school’s publication of his photograph was an infringement of his copyright.
The case came down to whether the school’s publication of the photograph communicated the work to a “new public”, an audience that would not originally have been contemplated by the photographer when authorising the travel agency to use his photograph. The CJEU held that it was to be regarded as a new public; a key point in the Court’s reasoning was that the photographer was no longer able to exercise control over the photograph and was deprived of the opportunity to claim any reward from its use.
This distinguishes this case from Svensson and BestWater International where hyperlinks were used to divert readers from the current website to the website where the work was authorised. Here, merely hyperlinking the reader to content meant that the copyright owner was still in control and could retract their work at their will, rendering the hyperlink useless.
There is a clear difference between linking to content which has been posted on the internet with the copyright owner’s consent and reposting that content on a different website without the owner’s consent. Actual copying of a work is not only harder to monitor, but strikes an unfair balance between the competing rights of copyright owners and internet users.
Implications of the case
Consequently, clients should be wary of reposting copyrighted works from other websites. Just because a work (in this case, a photograph) has been posted on the internet, without a restriction on who can use it, does not mean that others are free to copy it and repost it onto their own website.