On 7 August the judgment in Case C-161/17 Land Nordrhein-Westfalen v Dirk Renckhoff was published.
The judgment is in response to a preliminary reference which asked the following question:
‘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?’
What constitutes a violation of the rightholder’s communication to the public right is set out in case law to consist of a number of elements. Firstly, a communication of copyright material must be made. Secondly, that communication must be made to a public. A public is an “indeterminate number of people”, and for the right to be violated, the communication must be made to a “new public”. Where the communication to the public is made via a different technical means to the original communication of the copyright material, there is an assumption that it is made to a new public.
It has previously been held that hyperlinking to material published online with the rightholder’s consent does not constitute a communication to the public (Case C-466/122 Svensson and others). This is the case even where “deep-linking” or “framing” is used, so that it appears to the internet user as if the copyright material is on the website which contains the hyperlink (Case C-348/13 BestWater International). The exception to this rule is where the hyperlink is to material which was published online without the rightholder’s consent (Case C-160/15 GS Media)
This new judgment relates to a case where a school pupil used a photograph which was available on a website with the rightholder’s permission to embellish a presentation. The pupil’s work was then put onto the school’s website. The Court has ruled that this constituted a communication to the public.
This conclusion may raise eyebrows, given that the court has previously held that in giving permission for copyright material to be published online, the rightholder has given permission for it to be published to an audience of essentially every internet user, unless restrictions are placed on access to that material. It is difficult to reconcile this with the conclusion in this case that there was a communication to a new public. Moreover, while technically there is a difference between downloading and re-posting material on a website and deep-linking to or “framing” that material, it is unlikely the average internet user will be able to ascertain a difference between the two.
Interestingly, the Advocate General Opinion reached a different conclusion, stating that this scenario should not be considered a communication to the public.
The communication to the public right, outlined in Article 3(1) of the InfoSoc Directive, has been the subject of multiple preliminary references to the European Court of Justice. It seems unlikely, however, that this latest judgment will lend enough clarity to the right to prevent further references.