Ag Campos Provides Reasonable Interpretation Of The Correct Of Communication To The Populace Inwards His Sentiment Inwards Renckhoff

The function at the centre of this litigation

Does the inclusion of a function [the photograph on the right manus side] — which is freely accessible to all meshwork users on a third-party website amongst the consent of the copyright holder — on a person’s ain publicly accessible website constitute an deed of communication to the populace inside Article 3(1) of the InfoSoc Directive if the function is get-go copied onto a server together with is uploaded from at that topographic point to that person’s ain website?

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

This morn Advocate General (AG) Campos Sánchez-Bordona delivered his Opinion [not even hence available inwards English], together with answered inwards the negative.

Let’s run into what happened.

Background

Well, the background is quite ... ridiculous (in the feel that it is ridiculous that litigation is brought inwards the get-go house inwards instances similar the acquaint one), together with also the AG seemed to agree.

At the rattling outset, inwards fact, he observed that non long fourth dimension ago, schoolhouse inquiry together with function on posters used to hold out accompanied yesteryear photographs, prints together with drawings published on books together with journals/magazines together with hanged on the walls of schools (so to allow parents to stance them), “without the authors of those images seeking compensation for their use” [NOTE: all direct quotes are my ain translations from the Italian version of the Opinion]. Things receive got changed and, nowadays, the images used are digital together with the resulting schoolhouse work/research is uploaded on freely accessible websites.

This is indeed what happened inwards this illustration to a schoolgirl, who constitute an picture of the metropolis of Cordoba online together with used it for an assignment for her Castilian class, providing acknowledgment of the website from which she had downloaded the photograph (though non of the photographer, because the website where the photograph appeared did non render any). Upon finishing her work, she together with her instructor uploaded it online … but the lensman [in my stance it mightiness hold out fifty-fifty questionable that the function is protected yesteryear copyright inwards the get-go place; although the parties to the national litigation agreed that the photograph is protected, the AG also had his doubts: run into farther below] came forrard claiming infringement of his copyright inwards the photograph, together with that he had only granted a licence to exercise to the picture to the website from which the educatee had downloaded it.

Litigation has ensued all the way upwardly the High German Federal Court of Justice [!!], which has decided to remain the proceedings together with refer the enquiry inwards a higher house to the CJEU.

The AG Opinion

Preliminary remarks

Before fifty-fifty starting his ain substantial analysis, the AG noted that the notion of communication to the populace has been “already champaign of report to several decisions of the Court”. Yet, “the electrical flow reference shows that the interpretative questions of national courts receive got non been fully solved yet” [this is indeed truthful … inwards price of numbers, the CJEU is fast approaching its 20th conclusion on Article 3(1) of the InfoSoc Directive].

Then, the AG noted that the way the referring courtroom has phrased the enquiry requires the CJEU to alone consider the structure of the right of communication to the public, non also the number of reproduction [of course, yesteryear downloading the photograph together with re-uploading it, the schoolgirl made acts of reproduction].

As mentioned, the AG did non break it straightforward to say that a photograph similar the ane at number would hold out protected yesteryear copyright. Nonetheless, pursuant to the liberty left to Member Sates [but non all took payoff of this possibility, an illustration beingness the UK] yesteryear Article vi of the Term Directive to protect ‘simple photographs’, it would appear that – at to the lowest degree nether High German police clitoris – such photograph would hold out protected.

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

The AG hence turned to the structure of Article 3(1) of the InfoSoc Directive.

In relation to the demand for an ‘act of communication’, the AG noted that ane should consider “the indispensable role played yesteryear the user together with the deliberate nature of its intervention” [here the AG straight referred to GS Media, on which run into here]. Such touchstone requires to consider both subjective elements relating to the behavior of the user [the AG referred to GS Media to highlight how the Court has been taking into line of piece of employment concern human relationship also such elements] together with objective circumstances, equally the user’s deed must laissez passer on access to or facilitate access [this is a rattling of import signal relating to Article 3(1), which the CJEU has peculiarly elaborated inwards its judgments inwards Filmspeler – a illustration inwards which the AG was ane time once again Campos; run into my accept here – together with Ziggo, on which run into here] to a work.

Whilst it is truthful that both the schoolgirl together with her instructor were aware of the consequences of their behavior when they posted the photograph online, ie granting access to a work, it would hold out incorrect non to consider: (1) the accessory grapheme of the photograph equally an chemical ingredient of a broader work; (2) the fact that the photograph was already freely accessible together with had been published amongst the author’s consent; together with (3) the educational context inwards which the deed of communication occurred, ie without whatever customers or profit-making intention.

The AG observed that inwards a illustration similar the ane at issue, dissimilar GS Media, ane should non consider whether the educatee together with her instructor knew that the original photograph had been published or non amongst 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 inwards the negative, belongings that ane should deport inwards hear that: A) those who deed without a profit-making intention attain non commonly deed amongst total cognition of the consequences of their behaviour; together with B) the function communicated yesteryear the user was already lawfully together with freely accessible on about other website.

If the factors to which the arguments inwards a higher house refer to subsist, hence “there is no communication to the public”. However, this is NOT the illustration when the the righholders notifies the user that the function to which it gives access is unlawfully available online or when the access granted yesteryear the suer circumvents protection measures.

All this considered, the AG constitute that:

·       There was no nurture of who the writer of the photograph was on the website from which the educatee had downloaded the photograph;

·       The photograph was slow to obtain, equally at that topographic point were no restrictions (whether technical or related to the price of use) on such website.

These elements mightiness receive got led the educatee together with her instructor to believe that the photograph was gratuitous to exercise yesteryear the public.

This conclusion is non the same equally thinking that at that topographic point are no rights on such photograph. However, inwards cases similar the ane at issue, the user “may presume that the writer does non object to the limited exercise of such images, for educational purposes” [para 78 – this is right both inwards lite of CJEU illustration police clitoris and, to a greater extent than banally but non necessarily a given, inwards price of mutual sense]

The AG continued, belongings that whatever different conclusion would Pb to “limiting the exercise of close information available online. Such limitation could deport on liberty of aspect together with information equally per Article xi of the EU Charter. Furthermore, inwards the acquaint illustration such limitation would deport on the right to pedagogy equally per Article 14(1) of the Charter.” [para 79]

AG Campos Sánchez-Bordona

The AG also held the stance that lack of a profit-making intention is to a greater extent than relevant than what the referring courtroom appears to think. Here the AG recalled the GS Media presumption equally applied to for-profit link providers to manage that – inwards illustration at that topographic point were whatever doubts – for users without a profit-making intention it is necessary to demonstrate their cognition of the unlicensed grapheme of the function linked to. And the lack of whatever alert should hold out read, according to the AG, equally reinforcing the thought that neither the educatee nor her instructor had total cognition of the protected grapheme of the function together with the demand to seek the author’s authorization.

Notion of communication to the public: same technical agency together with a novel public

The AG hence turned to consideration of whether inwards the acquaint illustration the function has been made available to a ‘new public’, inwards that the technical agency used for the original together with the allegedly infringing communication was the same.

The AG ruled out that at that topographic point would hold out a novel populace inwards this case: “As the photograph is easily together with lawfully (ie amongst the consent of the rightholder) available to all meshwork users, it is unclear how the intervention of a educatee together with her instructor may hold out decisive hence that a greater number of persons access” the function [para 100].

The AG also rejected the thought – advanced yesteryear about commentators – that the ‘new public’ touchstone would amount to an undue exhaustion of the right of communication to the public, which would hold out equally such reverse to Article 3(3) of the InfoSoc Directive: “It is, instead, the logical outcome of the way inwards which the holder of the rights to the photograph has consented to its use, knowing or having to know that lack of whatever protection against the reproduction of the picture could Pb meshwork users to believe that it was freely available to the public” [para 104].

It is non also much to inquire a professional, when he/she publishes a function online, personally or through tertiary parties, to adopt the appropriate measures, also of a technical nature, inwards gild to clarify his/her copyright together with the volition to command the circulation of his/her ain work” [para 105]. This does non bring down the high grade of protection that authors are entitled to.

In whatever case, ane tin e'er seek the removal of one’s ain function if he/she believes that its exercise is prejudicial [para 107 - hither the AG does non elaborate further, but it seems that this is an declaration to strengthen the conclusion that the online publication of a function does non amount to a weakened copyright protection, or fifty-fifty the ‘exhaustion’ of one’s ain rights].

Also applicable to copyright protection ...
possibly ane of the master copy points
of the AG Opinion

The role of exceptions

The AG hence recalled that, inwards whatever case, educational exceptions mightiness hold out available. If Deutschland has transposed Article 5(3)(a) into its ain law, hence line of piece of employment concern human relationship should hold out given of the fact that the European Union Charter recognizes the right to pedagogy equally a cardinal right. This should guide the right application of the relevant exception, including ensuring that this cardinal right is non unduly compressed. In whatever case, inwards the illustration at issue, also compliance amongst the three-step assay appears ensured.

Comment

This looks similar a reasonable Opinion inwards the context of a fairly unreasonable claim, equally good equally a skillful interpretation of CJEU illustration police clitoris on the right of communication to the public. 

Two item points are worth making.

The get-go ane is that the AG Opinion is a helpful reminder that copyright protection should hold out balanced against other cardinal rights, including the right to education.

The minute signal relates to the structure of the right of communication to the public, together with inwards item the 'new public' criterion. It volition hold out of import to run into if the Court, similar the AG, addresses the criticism that the 'new public' touchstone has resulted inwards an exhaustion of the right of communication to the public. The interpretation provided yesteryear AG Campos appears sensible, together with suggests that - similarly to the illustration of other IP rights (eg merchandise marks together with the steps to hold out taken against 'genericide') also copyright protection comes amongst sure enough 'responsibilities' on the side of rightholders. 

Let’s run into if the Court agrees …