• Henry Park

EU - Reusing images requires author permission

The Court of Justice of the European Union just put another nail into the sinking ship which was the concept that a person can copy unilaterally an image from another website and then post it on another website. This concept is often accompanied by the infringer claiming that they did not know it was unlawful to do so, or that they attributed the image and thus it was okay to copy and repost the image. Land Nordrhein-Westfalen v. Renckhoff, Case C-161/17 (August 7, 2018) (see link 1, link 2).

The CJEU held that "the concept of ‘communication to the public’, within the meaning of Article 3(1) of Directive 2001/29, must be interpreted as meaning that it covers the posting on one website of a photograph previously posted, without any restriction preventing it from being downloaded and with the consent of the copyright holder, on another website" (link 2, paragraph 47)

In the case before it, a student copied an image from a online travel portal for a presentation, and the student's school posted the presentation with the copied image on its website. The image on the online portal was licensed by the photographer. It was not restricted from downloading. The student included a link to the online travel portal with the image in the student's presentation (link 2, paragraphs 6-8).

The CJEU started with the premise that "any use of a work carried out by a third party without such prior consent must be regarded as infringing the copyright in that work" (link 2, paragraph 16).

It found that posting a copied image onto a new website was an act of communication within the meaning of Article 3(1) of Directive 2001/29 (link 2, paragraph 21).

It found that an author's right to control the communication of its image was not exhausted by any prior act of communication to the public or making available to the public within the meaning of that provision (link 2, paragraphs 32-33).

It found that posting a copied image onto a new website was an act of communication to a new public (link 2, paragraphs 24 and 35). And that the new website communicated the copied image to a "new" public which was not taken into account by its author when he consented to the initial communication. (link 2, paragraph 46)

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#copyright #EU

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