In a recent case a photographer authorized the operators of a travel website to publish one of his photographs on their website. A pupil at a secondary school in Germany downloaded that photograph from the travel website (on which it was freely accessible) in order to illustrate a school presentation, which was then published on the school website. The photographer alleged that his copyright was infringed by the school since he had given the right to use his photograph only to the operators of the travel website.
In the context of a preliminary ruling, the Court of Justice of the European Union (the Court) was asked by the German Supreme Court to specify how to construct the concept of 'communication to the public' within the meaning of the Copyright Directive of 2001 (the Directive). In a judgment issued in August 2018, the Court reiterated that this concept includes two cumulative criteria, namely an 'act of communication' of a work and the communication of that work to a 'public'. Specifically, the Court affirmed that this concept "covers the posting on a website of a photograph which has been previously published on another website without any restrictions preventing it from being downloaded and with the consent of the copyright holder".
To reach that conclusion, the Court analyzed the posting on one website of a photograph previously posted on another website, after it has been first copied onto a private server, as an 'act of communication'. Reposting shall consequently be seen as an act of communication in itself. The Court then observed that, since the work is posted on one website other than the authorized one by the author, this act of communication shall be regarded as making the work available to a 'new public'. Besides, the Court stated that the absence of technical measures to prevent the Internet user to download the photograph is irrelevant.
As a consequence, prior authorization of author is required to repost on one website a work subject to copyright even though it had already been lawfully published on another website with no restriction. Even though the sanction of such an infringement mostly consists in an order to cease and desist the reproduction of the work subject to copyright, such cases can adversely affect the image of companies. It is therefore advised to collect the consent of the author prior to reposting on a website.
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