Wednesday 25 April 2018

AG Campos provides reasonable interpretation of the right of communication to the public in his Opinion in Renckhoff

The work at the centre of this litigation
Does the inclusion of a work [the photograph on the right hand side] — 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 an act of communication to the public within Article 3(1) of the InfoSoc Directive if the work is first copied onto a server and is uploaded from there to that person’s own website?

This is the question that the Court of Justice of the European Union (CJEU) has been asked to address in Land Nordrhein-Westfalen v Renckhoff, C-161/17.

This morning Advocate General (AG) Campos Sánchez-Bordona delivered his Opinion [not yet available in English], and answered in the negative.

Let’s see what happened.


Well, the background is quite ... ridiculous (in the sense that it is ridiculous that litigation is brought in the first place in instances like the present one), and also the AG seemed to agree.

At the very outset, in fact, he observed that not long time ago, school research and work on posters used to be accompanied by photographs, prints and drawings published on books and journals/magazines and hanged on the walls of schools (so to allow parents to view them), “without the authors of those images seeking compensation for their use” [NOTE: all direct quotes are my own translations from the Italian version of the Opinion]. Things have changed and, nowadays, the images used are digital and the resulting school work/research is uploaded on freely accessible websites.

This is indeed what happened in this case to a schoolgirl, who found an image of the city of Cordoba online and used it for an assignment for her Spanish class, providing acknowledgment of the website from which she had downloaded the photograph (though not of the photographer, because the website where the photograph appeared did not provide any). Upon finishing her work, she and her teacher uploaded it online … but the photographer [in my view it might be even questionable that the work is protected by copyright in the first place; although the parties to the national litigation agreed that the photograph is protected, the AG also had his doubts: see further below] came forward claiming infringement of his copyright in the photograph, and that he had just granted a licence to use to the image to the website from which the pupil had downloaded it.

Litigation has ensued all the way up the German Federal Court of Justice [!!], which has decided to stay the proceedings and refer the question above to the CJEU.

The AG Opinion

Preliminary remarks

Before even starting his own substantial analysis, the AG noted that the notion of communication to the public has been “already subject to several decisions of the Court”. Yet, “the current reference shows that the interpretative questions of national courts have not been fully solved yet” [this is indeed true … in terms of numbers, the CJEU is fast approaching its 20th decision on Article 3(1) of the InfoSoc Directive].

Then, the AG noted that the way the referring court has phrased the question requires the CJEU to only consider the construction of the right of communication to the public, not also the issue of reproduction [of course, by downloading the photograph and re-uploading it, the schoolgirl made acts of reproduction].

As mentioned, the AG did not find it straightforward to say that a photograph like the one at issue would be protected by copyright. Nonetheless, pursuant to the freedom left to Member Sates [but not all took advantage of this possibility, an example being the UK] by Article 6 of the Term Directive to protect ‘simple photographs’, it would appear that – at least under German law – such photograph would be protected.

Notion of communication to the public: an ‘act of communication’

The AG then turned to the construction of Article 3(1) of the InfoSoc Directive.

In relation to the need for an ‘act of communication’, the AG noted that one should consider “the indispensable role played by the user and the deliberate nature of its intervention” [here the AG directly referred to GS Media, on which see here]. Such criterion requires to consider both subjective elements relating to the behaviour of the user [the AG referred to GS Media to highlight how the Court has been taking into account also such elements] and objective circumstances, as the user’s act must give access to or facilitate access [this is a very important point relating to Article 3(1), which the CJEU has particularly elaborated in its judgments in Filmspeler – a case in which the AG was once again Campos; see my take here – and Ziggo, on which see here] to a work.

Whilst it is true that both the schoolgirl and her teacher were aware of the consequences of their behaviour when they posted the photo online, ie granting access to a work, it would be wrong not to consider: (1) the accessory character of the photograph as an element of a broader work; (2) the fact that the photograph was already freely accessible and had been published with the author’s consent; and (3) the educational context in which the act of communication occurred, ie without any customers or profit-making intention.

The AG observed that in a case like the one at issue, unlike GS Media, one should not consider whether the pupil and her teacher knew that the original photograph had been published or not with the consent of the author, but rather whether they should know that, to reproduce a third-party photograph, they needed the author’s consent. The AG answered in the negative, holding that one should bear in mind that: A) those who act without a profit-making intention do not usually act with full knowledge of the consequences of their behaviour; and B) the work communicated by the user was already lawfully and freely accessible on another website.

If the factors to which the arguments above refer to subsist, then “there is no communication to the public”. However, this is NOT the case when the the righholders notifies the user that the work to which it gives access is unlawfully available online or when the access granted by the suer circumvents protection measures.

All this considered, the AG found that:

·       There was no mention of who the author of the photograph was on the website from which the pupil had downloaded the photograph;
·       The photograph was easy to obtain, as there were no restrictions (whether technical or related to the terms of use) on such website.

These elements might have led the pupil and her teacher to believe that the photograph was free to use by the public.

This conclusion is not the same as thinking that there are no rights on such photograph. However, in cases like the one at issue, the user “may presume that the author does not object to the limited use of such images, for educational purposes” [para 78 – this is correct both in light of CJEU case law and, more banally but not necessarily a given, in terms of common sense]

The AG continued, holding that any different conclusion would lead to “limiting the use of most information available online. Such limitation could affect freedom of expression and information as per Article 11 of the EU Charter. Furthermore, in the present case such limitation would affect the right to education as per Article 14(1) of the Charter.” [para 79]

AG Campos Sánchez-Bordona
The AG also held the view that lack of a profit-making intention is more relevant than what the referring court appears to think. Here the AG recalled the GS Media presumption as applied to for-profit link providers to hold that – in case there were any doubts – for users without a profit-making intention it is necessary to demonstrate their knowledge of the unlicensed character of the work linked to. And the lack of any warning should be read, according to the AG, as reinforcing the idea that neither the pupil nor her teacher had full knowledge of the protected character of the work and the need to seek the author’s authorization.

Notion of communication to the public: same technical means and a new public

The AG then turned to consideration of whether in the present case the work has been made available to a ‘new public’, in that the technical means used for the original and the allegedly infringing communication was the same.

The AG ruled out that there would be a new public in this case: “As the photograph is easily and lawfully (ie with the consent of the rightholder) available to all internet users, it is unclear how the intervention of a pupil and her teacher may be decisive so that a greater number of persons access” the work [para 100].

The AG also rejected the idea – advanced by some commentators – that the ‘new public’ criterion would amount to an undue exhaustion of the right of communication to the public, which would be as such contrary to Article 3(3) of the InfoSoc Directive: “It is, instead, the logical consequence of the way in which the holder of the rights to the photograph has consented to its use, knowing or having to know that lack of any protection against the reproduction of the image could lead internet users to believe that it was freely available to the public” [para 104].

It is not too much to ask a professional, when he/she publishes a work online, personally or through third parties, to adopt the appropriate measures, also of a technical nature, in order to clarify his/her copyright and the will to control the circulation of his/her own work” [para 105]. This does not reduce the high level of protection that authors are entitled to.

In any case, one can always seek the removal of one’s own work if he/she believes that its use is prejudicial [para 107 - here the AG does not elaborate further, but it seems that this is an argument to strengthen the conclusion that the online publication of a work does not amount to a weakened copyright protection, or even the ‘exhaustion’ of one’s own rights].

Also applicable to copyright protection ...
possibly one of the main points
of the AG Opinion
The role of exceptions

The AG then recalled that, in any case, educational exceptions might be available. If Germany has transposed Article 5(3)(a) into its own law, then account should be given of the fact that the EU Charter recognizes the right to education as a fundamental right. This should guide the correct application of the relevant exception, including ensuring that this fundamental right is not unduly compressed. In any case, in the case at issue, also compliance with the three-step test appears ensured.


This looks like a reasonable Opinion in the context of a fairly unreasonable claim, as well as a good interpretation of CJEU case law on the right of communication to the public. 

Two particular points are worth making.

The first one is that the AG Opinion is a helpful reminder that copyright protection should be balanced against other fundamental rights, including the right to education.

The second point relates to the construction of the right of communication to the public, and in particular the 'new public' criterion. It will be important to see if the Court, like the AG, addresses the criticism that the 'new public' criterion has resulted in an exhaustion of the right of communication to the public. The interpretation provided by AG Campos appears sensible, and suggests that - similarly to the case of other IP rights (eg trade marks and the steps to be taken against 'genericide') also copyright protection comes with certain 'responsibilities' on the side of rightholders. 

Let’s see if the Court agrees …

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