PUBLISHING ON A WEBSITE A PICTURE WHOSE ACCESS HAS BEEN AUTHORIZED IN ANOTHER WEBSITE BY THE AUTHOR REQUIRES A NEW AUTHORIZATION FROM HIM

12 Sep PUBLISHING ON A WEBSITE A PICTURE WHOSE ACCESS HAS BEEN AUTHORIZED IN ANOTHER WEBSITE BY THE AUTHOR REQUIRES A NEW AUTHORIZATION FROM HIM

Indeed, that is the conclusion reached by the Court of Justice of the Union European (CJEU) in a novel and important statement of the past August 2018.

Thus, at European level, and therefore in all Spain is now clear that through this new publication on different internet site the photo gets to a new public.

The court case refers to a photographer who authorized operators of a Web site dedicated to travel to publish one of his photos on its website. A student from a centre of secondary education in Germany had downloaded the photo from that page (which could be accessed freely) in order to illustrate a school work. This work was later published on the website of the school.

The photographer filed a lawsuit by the German courts with the purpose of banning the person responsible for this website (regional authority of the Department of education) to reproduce his photo. The amount of 400 euros in compensation for damages was also demanded. In this regard, the photographer alleged that he had only given a right to use the photo to the operators of the travel Web site, and stated that the publication of the photograph on the website of the school violated copyright.

In this context, the Supreme Court Civil and criminal of Germany requested the Court of Justice to interpret the directive on copyright, according to which the author of a work has, in principle, the exclusive right to authorize or prohibit the communication to the public of such work.

The Supreme Court Civil and criminal of Germany asked if the concept of ‘communication to the public’ includes the publication on a website of a photograph that has been published previously in another website without restrictions that prevent its downloading and with the permission of the copyright holder.

Through its August ruling, the European Court of Justice answered this question affirmatively.

To begin with, the Court of Justice recalls that a photograph can be protected by copyright provided that it is an intellectual creation of the author that reflects his personality and that is revealed by the free and creative decisions to take it, and these are aspects corresponding to the national court to check.

Then the Court points out that, notwithstanding the exceptions and limitations provided for exhaustively in the directive, it should be noted that any use of a work by a third party without the prior consent of the author violates his rights. Indeed, the aim of the directive is to achieve a high level of protection in favor of the authors, allowing them to receive adequate compensation for the use of their works, in particular on the occasion of its communication to the public. In this particular case, the publication, on a website, from a previously published photograph on another website – after having been copied, between those two publications, in a private server – must be described as ‘making available’ and, Accordingly, an «Act of communication». Indeed, this publication offers to the visitors of the website where the photo has been carried out (in this case, the website of the school) the possibility of having access to this photo on this website. In addition, in the circumstances of this matter, the publication of a work protected by copyright in a Web site other than the one where there was the initial communication with the permission of the copyright holder must qualify for making available of this work to a new audience. Indeed, in such circumstances, the public that the copyright holder took into account when authorizing the communication of his work on the website where it was initially published was only formed by users of this site, and not 1) by users of the website in which the work was subsequently published without authorization of the owner, or 2) by other Internet users.

In this regard, the Court points out that that publication must be distinguished from the one of making protected works available by a web link that redirects the initial communication where it has been made to another website. Indeed, unlike web links, that contribute to the smooth functioning of the Internet, the publication on a website without the authorization of the holder of the copyright of a work previously communicated in other Internet site with the consent of right holder does not contribute to the aforementioned goal in equal measure. Finally, the Court highlights that it has no relevance the fact that, as in this case, the holder of copyright had not limited the possibilities of use of the photograph by Internet users.