CJEU rules that re-posting a photograph without explicit consent may infringe copyright

On 7 August 2018, the Court of Justice of the European Union ("CJEU") rendered a very controversial decision. According to this judgment, the unauthorized re-posting of a copyright protected photograph may be considered an independent act of communication to the public within the scope of Article 3(1) of the EC Directive 2001/19 (Case C- 161/17 – Renckhoff), even if the photograph was previously posted with the consent of the copyright holder on another website.


The CJEU in its decision did not follow the opinion of the Attorney General, who came to the recommendation not to consider the specific use as a communication to the public, highlighting the educational purpose of the specific use and also challenging the protectability of the specific work.

Background to the Renckhoff Case

The case was referred to the CJEU by the German Federal Court of Justice in a copyright litigation between a photographer and a school about the use of a photograph by one of its pupils.

The pupil had copied a photograph from a website for a school assignment (acknowledging the website from which the photograph was copied but not the copyright holder). After the assignment was finished, the assignment was uploaded by the school to the school’s website. The photographer of the relevant picture has sued the school for copyright infringement arguing that he had only granted a license to use the image to the website from which the photograph was downloaded, an online travel portal.

The Regional Court upheld the claim by the photographer in the most part and ordered the federal state of North Rhine- Westphalia, as the school’s governing body, to remove the photograph from the school’s website and to pay EUR 300 plus interest as a license fee.

On appeal before the Higher Regional Court of Hamburg, the Court upheld the findings of the Regional Court that the re-posting of the photograph constituted a copyright infringement.

The German Federal Court of Justice referred the matter to the CJEU. The German Federal Court of Justice in particular asked the CJEU whether the inclusion of a work, which was freely accessible on a third-party website with the consent of the copyright holder, constitutes a making available of that work to the public within the meaning of Article 3(1) of Directive 2001/29, if posted again on the website of a third party.

The CJEU’s Decision

The CJEU answered the above question by the German Federal Court of Justice in the affirmative and held that the re-posting of the photograph without the rightsholder’s consent to a third party website may constitute a separate act of communication to the public.

In its decision, the CJEU has centered its assessment on the question of whether the re-posting of the photograph would be seen as a communication to a “new public” which means to a public that was not already taken into account by the copyright holder when he authorized the initial communication to the public of his work. This prerequisite for a potential copyright infringement was introduced by the CJEU in the matter Svensson (C-466/12) and has since then been specified in other CJEU judgments (for example GS Media). For the specific case, the CJEU saw this criterion as satisfied as the school’s website is a free website, available to all internet users.

Further, the CJEU held that a contrary ruling would deprive the copyright holder of the opportunity to claim an appropriate reward for the use of his work, if it would be legal to simply copy a photograph and put it on other websites if the photographer cannot participate on this further use. Further, a contrary ruling would also lead to the conclusion that the photograph would still be available on the internet, if the holder of the copyright decides no longer to communicate his work on the website on which it was initially communicated with his consent. Therefore, the copyright holder would be deprived of the right to control the use of the copyright protected work.

Consequences for Copyright Works

The decision of the CJEU is very good news for copyright owners. As already held in other decisions, the CJEU has confirmed to copyright owners that they shall have the same right to control their works over the internet as offline.

The judgment of the CJEU does in particular confirm the general assumption that the re-posting of a copyright protected photograph on a third website without proper authorization does constitute not only a reproduction (assuming the technical requirements are met) but also a communication to the public. The CJEU also followed its previous decisions in the matters Svensson, GS Media and The Pirate Bay according to which the act of communication to the public has to be construed broadly. The reasoning of the decision might also be applicable to other works, not only photographs.

What the CJEU was not asked to consider, but which still has to be decided by the German Federal Court of Justice, is whether the photograph in question was actually copyright protected. There is some doubt about this, as well as whether any educational exemption of the German Copyright Act would apply to the benefit of the school.


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