Case law: Unauthorised copying of another website's content infringes copyright, says European Court
Webmasters should ensure that no images or other content on their websites have been taken from other sites without permission, as this amounts to copyright infringement.
This update was published in Legal Alert - October 2018
Legal Alert is a monthly checklist from Atom Content Marketing highlighting new and pending laws, regulations, codes of practice and rulings that could have an impact on your business.
A student in Germany used a photo taken from a travel website in a school project. The school then put the project on its website. The photographer who had created the photo had not authorised the school to use his work in this way, nor was he acknowledged on the school website because his details had not been included on the original travel site. The photographer found out his photo was on the school website, and claimed breach of copyright.
Under EU law, there is only copyright infringement if a 'work' - the photograph in this case - has been 'made available to the public'. However, there is no legal definition of what this means. The school argued that the work had already been made available to the public because it had been made freely available on the internet via the travel site, so posting it again on a different site was not an infringement.
The German courts asked the Court of Justice of the European Union (CJEU) to clarify the issue:
"Does the inclusion of a work – which is freely accessible to all internet users on a third-party website with the consent of the copyright holder – on a person's own publicly accessible website constitute a making available of that work to the public within the meaning of Article 3(1) of [Directive 2001/29] if the work is first copied onto a server and is uploaded from there to that person's own website?"
In its preliminary opinion, the Advocate General of the CJEU said that, since the image was on the travel website with the photographer's consent, it was "accessible without technical restrictions", and did not carry a copyright notice there, the image had already been communicated to the public. Internet users were therefore entitled to assume that the photographer also consented to others downloading and re-using that image on their own websites.
Usually, the CJEU follows the Advocate General's opinion - but not this time. The CJEU ruled that inclusion of the work on the school website amounted to making it available to a new and different public from that of the travel site. There had, therefore, been a fresh communication to the public, and so it amounted to an infringement of the photographer's copyright in the image.
However, offering a possible let out for webmasters, the CJEU also commented that merely hyperlinking to an image or other content on another site would not have been a communication to the public for these purposes.
- Webmasters should ensure that the use of images and other content on their websites does not breach the intellectual property rights – particularly copyright - of a third party, as their use may amount to communication to the public in breach of copyright law
Case ref: Land Nordrhein-Westfalen v Dirk Renckhoff, Case C-161/17
Disclaimer: This article from Atom Content Marketing is for general guidance only, for businesses in the United Kingdom governed by the laws of England. Atom Content Marketing, expert contributors and ICAEW (as distributor) disclaim all liability for any errors or omissions.
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