On August 7 2018, the Court of Justice of the European Union rendered a decision on the interpretation of the Copyright Directive, according to which the author of a work has the exclusive right to authorize or prohibit any communication to the public at the work.
A photographer authorized the operators of a travel website to publish one of his photographs on their website. A student at a secondary school in Land North Rhein-Westphalia in Germany downloaded that photograph from the travel website in order to illustrate a school presentation published on the school website.
The photographer brought an action against the Land North Rhein-Westphalia before the German courts seeking an order prohibiting the reproduction of his photograph, and claiming damages of €400. He claimed that he gave a right of use to the operators of the travel website and that the posting of the photograph on the school website is an infringement of his copyright.
The Bundesgerichtshof (Federal Court of Justice, Germany) took advantage of it to ask the Court of Justice to interpret the Copyright Directive, according to which the author of a work has the exclusive right to authorize or prohibit any communication to the public of that work.
The question was to know whether the concept of ‘communication to the public’ covers the posting on a website of a photograph which has been previously published on another website without any restrictions preventing it from being downloaded and with the consent of the copyright holder, and the Court answered positively that question.
The Court recalled that, subject to the exceptions and limitations laid down exhaustively in that directive, any use of a work by a third party without such prior consent must be regarded as infringing the copyright of that work, and that the directive aims to established a high level of protection for authors, allowing them to obtain an appropriate reward for the use of their works, including on the occasion of communication to the public.
Source: CJEU website
Link: https://curia.europa.eu/jcms/upload/docs/application/pdf/2018-08/cp180123en.pdf
Mélodie DRISSI for ATurquoise
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