By Paul Joseph and Adam Cusworth*
The CJEU recently decided in Renckhoff that the inclusion of a photograph of the city of Cordoba on a school's website without permission from the photographer, which photograph had been obtained by a pupil at the school from a third party travel website (the third party website used the image under an exclusive licence from the photographer), amounted to a 'communication to the public' (and as a result copyright infringement).
To most people with a rough understanding of copyright law, that may seem like the correct outcome: the school used on its website a photograph benefitting from copyright protection without the permission of the copyright owner – why shouldn't that be an infringement?
The problem lies in the route through which the CJEU came to this conclusion, which displays the tortured state of European copyright law at the moment. To find that the school had made a 'communication to the public', the CJEU had to distinguish the formative earlier decision in Svensson from the facts of this case, in so doing leaving significant questions in the theory behind the law in this area, which shouldn't have been necessary.
The CJEU had to determine whether the school's actions amounted to a 'communication to the public'. That is because the Copyright Directive contains a "right of communication to the public of works and of making available to the public other subject matter", and it was a question as to the correct interpretation of this right that was referred to the CJEU.
The CJEU summarised the "settled case law" on the requirements of a 'communication to the public' as being as follows:
"In order to be treated as a ‘communication to the public’, the protected 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."
In this case the communications were made with the same technical means – through websites, so the remaining question was whether the communication was to a 'new public'.
In Svensson, a case involving hyperlinks, the effect of the CJEU's decision was that if a website communicated a copyright work to the internet at large, then it was not an infringement of the 'communication to the public' right to hyperlink to that copyright work using the same technical means (i.e. on a different website). That was because the hyperlinks in question were communicated to the same public that was taken into account by the copyright holders when they authorised the initial 'communication to the public', i.e. all internet users had free access to both the original works and the hyperlinks, so there was no communication to a new public as a result of the hyperlink.
In the present case, the CJEU felt it had to somehow get around the clear statement in Svensson about what a 'communication to a new public' means in the context of a website.
The CJEU justified the need for a divergent approach on the following policy considerations:
1. Hyperlinks are parasitic on the original communication (so once the original work is withdrawn hyperlinks to that work cease to communicate the copyright work) whereas where a copyright work is re-posted, this is not the case and the rights-holder loses control over the communication.
2. It would be akin to 'exhausting' a rights-holder’s right to communicate works to the public if after first posting a work on a website, third parties could communicate the same work on other websites without infringing the rights-holder’s right to communicate copyright works to the public.
3. It would also deprive a copyright owner of the opportunity to claim an appropriate reward for the use of his work.
As a result of these policy considerations, the CJEU found that there was a 'communication to a new public':
"In such circumstances, the public taken into account by the copyright holder when he consented to the communication of his work on the website on which it was originally published is composed solely of users of that site and not of users of the website on which the work was subsequently published without the consent of the rightholder, or other internet users."
It is very difficult to square this with Svensson, in which the CJEU made clear that posting a copyright work on a freely available website, is a communication to all potential users of the website (i.e. the internet at large).
We are left wondering how CJEU case law on what should be a straightforward copyright question has become so convoluted and fact specific. The answer must lie in the competing objectives of protecting rights-holders versus protecting the proper functioning of the internet, but that doesn't justify the current state of CJEU case law. A much simpler method would have been to find that there was no communication to a new public, and leave it to the national courts to find there was an infringement of the reproduction right (the right for rights-holders to reproduce their work).
By further nuancing Svensson the CJEU has made the 'communication to the public' right even more fact dependent and less certain, to the detriment of rights-holders and internet users alike. It seems even 'easy' cases can make bad law.
 Renckhoff C-161/17
 Svensson and Others C‑466/12
 Directive 2001/29
[*] Paul Joseph is a Partner in IP & Technology at RPC in London. Paul can be contacted at firstname.lastname@example.org. Adam Cusworth is a Senior Associate in IP & Technology at RPC in London. Adam can be contacted at email@example.com. RPC is a modern and commercially-orientated law firm, based in London, with offices in Bristol, Singapore and Hong Kong. RPC was awarded Law Firm of the Year at the Lawyer Awards 2014 and The British Legal Awards 2015. RPC was also the winner of Best Client Service Innovationat The Lawyer Awards 2017. RPC has been accredited in Legal Week's Best Legal Adviser Report every year since 2009, including coming first overall in both 2015 and 2013.