EU court rules against German school in photo copyright row

9 Aug 2018

The CJEU has sided with photographers in a major ruling. Image: fantom_rd/Shutterstock

The highest court in Europe rules a German secondary school infringed upon a photographer’s copyright.

The Court of Justice of the European Union (CJEU) has determined that a website needs to obtain permission from the copyright-holder of an image before it can use the image, even if the image is available elsewhere.

It said: “The posting on a website of a photograph that was freely accessible on another website with the consent of the author requires a new authorisation by that author.”

A German school runs into trouble

The case involved a secondary school student in Germany. The student of Gesamtshcule de Waltrop downloaded a photo that had been freely accessible on a travel website for a school project.

The school then posted the project on its website, including the photo in question.

The photographer, Dirk Renckhoff, said the use of the photo by the school was copyright infringement.

The image of the Spanish city of Cordoba was originally used on the German travel website Reisemagazin Schwarzaufweiss.

Renckhoff originally only gave the travel site permission to use the image.

He sued the German state where the school was based, Land Nordrhein-Westfalen, claiming damages of €400.

The state argued that the image was freely accessible on the travel website. It added that the teacher and student were not aware of the consequences of publishing the image.

A victory for creator copyright

The CJEU sided with the photographer. It said that under the EU Copyright Directive, the school should have sought his approval before the image was published on its website.

The CJEU added: “The Court goes on to hold 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.”

It noted that the case was not entirely straightforward: “It is uncertain … whether in those circumstances the photo … was communicated to a new public on the school’s website, that is to say, to a public which the right-holder did not envisage when he authorised the original communication of his work to the public.”

The conclusions reached was that while the photographer could expect people to see the image on the travel website, it was not the same to say he would expect to see it on a totally different platform geared towards a different ‘public’ or readership.

The court also stressed that hyperlinking to an image is very different to downloading and uploading a photo to another website.

It added: “The posting of a work protected by copyright on a website other than that on which it was initially communicated with the consent of the copyright-holder must, in circumstances such as those at issue, be regarded as making available to a new public.”

The case may now trigger a wave of similar lawsuits and possibly even a clarification of the rules around identifying and contacting copyright-holders.

Ellen Tannam was a journalist with Silicon Republic, covering all manner of business and tech subjects