The case, Land Nordrhein-Westfalen v Dirk Renckhoff, involved the use of a photograph published on a freely accessible travel website. A pupil at a German school downloaded and used this photograph as part of a school presentation, and the image was subsequently re-published on the school's website.
By publishing the image without the consent of the original author, the school was subject to a series of litigation through the national courts of Germany. In the initial hearing, a Hamburg regional court ruled that the photograph needed to be removed from the school's website, and fined the school €300 plus interest.
Both the school and the state appealed the decision. The German Federal Court of Justice then passed the case onto the CJEU, asking it to consider whether the concept of ‘communication to the public’ includes posting a photograph on a website which has been published previously on another website without any restrictions preventing it from being downloaded.
The CJEU considered that the answer to the German Federal Court's question depended on whether there was a communication to the public; there was no other condition to be fulfilled. The CJEU ultimately decided that posting a photograph previously posted on another website, after the photograph has been copied onto a private server, must be treated as 'making available' the image to a 'new public'.
The CJEU decided that the 'public' taken into account by Mr Renckhoff when he consented to the original publication was only the users of the travel website (not users of the school website on which the image was subsequently published, or even other internet users).
The decision establishes a very high level of protection for authors and creators.
Despite the low fine, the CJEU is sending a clear warning that the use of a publicly available image copyrighted by a third party, without their consent, risks opening up a series of costly litigation and a fine for copyright infringement.
Charities may wish to consider obtaining the consent of the author before re-publishing freely accessible images online. You never know who might take you to court!