The latest article by Junior Associate Sarah Cannataci relates to a judgment by the Court of Justice of the European Union ("CJEU") in the Case C-161/17 (Land Nordrhein-Westfalen vs. Renckhoff) as well as the clarifications brought on by said judgment to some important aspects of EU Law regulating the copyright and communication of works to the public.

Fiasco in a Flash

You're finishing off an important presentation or working on a school project – how many times have you Googled tirelessly and found the perfect image or photograph to bring your creation to life? Copy and pasting that photo or image onto your blog or website in one click or editing the material for your own specific purpose may be tempting, but it can easily land you in hot waters.

In a recent judgment, the Court of Justice of the European Union ('CJEU') has ruled that publishing freely available content on the Internet requires the authorisation of the author of such content.

Case C- 161/17, in the names of Land Nordrhein – Westfalen v. Dirk Renckhoff, nicknamed the 'Cόrdoba Copyright Case', centered around the fact that in early 2009, a student at the Waltrop Secondary School ('Gesamtschule Waltrop') in Germany downloaded a photo of the city of Cόrdoba he found online to include as part of a presentation that was then uploaded to the school website and thus made accessible to the public.

The Cόrdoba photo however, was the intellectual creation of Dirk Renckhoff, the photographer, who had granted an exclusive right of use to the operators of the online travel portal from which the student had downloaded the photo. He sued the city of Waltrop and North Rhine-Westphalia, claiming that such downloading and positing of the photograph on the school website constituted an infringement of his copyright, the right to make copies and his right to make the creation available to the public.

Replying to a request for a preliminary ruling from the German Federal Court of Justice ('Bundesgerichtshof'), the CJEU undertook an in-depth analysis of the concept of 'communication to the public' in accordance with the provisions of InfoSoc Directive (Directive 2001/29), highlighting firstly that, subject to any exceptions and limitations laid down by Member States, any use of an intellectual creation by a third party without the authors' authorisation constitutes an infringement of copyright.

As established in past cases, such as C – 610/15 Stichting Brein, this concept of 'communication to the public' finds its basis in the 'act of communication' of a work and the communication of that work to the 'public'. Moreover, the CJEU stipulated that the work must be "communicated using specific technical means, different from those previously used, or failing that, to a 'new public', that is to say, to a public that was not already taken into account by the copyright holders when they authorised the initial communication to the public of their work".

The Court here distinguished between the communication to the public via posting of a work on a website and the communication of a work through the use of hyperlinks that lead users through websites to the website where the work was originally communicated without restriction and with the copyright holder's consent. This distinction is especially clear in the fact that in the former, the exercise of the author's rights, such as to cease the communication or claim rewards, would be made impossible or at least much more difficult than in the latter example.

The CJEU's decision was that a 'communication to the public' includes the posting of a photograph on a website which had been previously published on another website with the consent of the copyright holder, even if without any restrictions preventing it from being downloaded. This gives authors, such as artists, publishers and broadcasters, amongst others, the opportunity to assert their rights in an unprecedented manner. This judgment will undoubtedly lead to an influx of litigation as authors of intellectual works seek to stop infringement of the copyright in their works as well as to claim revenue due for the unauthorised use of their works.

Maltese laws are in line with EU Directives on this subject. Thus, a photograph in Malta would be covered by copyright as an 'artistic work' under Chapter 415 of the Laws of Malta. Provided that the work in question satisfies the criteria of originality, qualification and fixation, Maltese law stipulates that copyright is granted automatically, without the specific need for registration of the same work. This latter point may prove to be slightly problematic in the proper implementation of the principles related to communication to the public arising from the Cordoba Copyright decision, in that, when faced with potential infringement by third parties who claim that the creation or similar work is theirs, and not the original author, date of creation of the artistic work might be unclear where the work in question have not been formalised to fix 'the date' when the artistic work was created.

Otherwise, in Malta too, the Cordoba decision stands, meaning that all uses of work found freely on the Internet must first be checked and the author's consent (if required) must be sought and obtained, so hold off pressing CTRL + V so quickly!

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.