CJEU proves even easy copyright cases make bad law

By further nuancing Svensson the CJEU has made the 'communication to the public' right even more fact dependent and less certain, to the detriment of rights-holders and internet users alike

The CJEU recently decided in Renckhoff[1] that the inclusion of a photograph of the city of Cordoba on a school's website without permission from the photographer, which photograph had been obtained by a pupil at the school from a third party travel website (the third party website used the image under an exclusive licence from the photographer), amounted to a 'communication to the public' (and as a result copyright infringement).

To most people with a rough understanding of copyright law, that may seem like the correct outcome: the school used on its website a photograph benefitting from copyright protection without the permission of the copyright owner – why shouldn't that be an infringement?

The problem lies in the route through which the CJEU came to this conclusion, which displays the tortured state of European copyright law at the moment. To find that the school had made a 'communication to the public', the CJEU had to distinguish the formative earlier decision in Svensson[2] from the facts of this case, in so doing leaving significant questions in the theory behind the law in this area, which shouldn't have been necessary.

The CJEU had to determine whether the school's actions amounted to a 'communication to the public'. That is because the Copyright Directive[3] contains a "right of communication to the public of works and of making available to the public other subject matter", and it was a question as to the correct interpretation of this right that was referred to the CJEU.

The CJEU summarised the "settled case law" on the requirements of a 'communication to the public' as being as follows:

"In order to be treated as a ‘communication to the public’, the protected work must be communicated using specific technical means, different from those previously used or, failing that, to a ‘new public’, that is to say, to a public that was not already taken into account by the copyright holders when they authorised the initial communication to the public of their work."

In this case the communications were made with the same technical means – through websites, so the remaining question was whether the communication was to a 'new public'.

In Svensson, a case involving hyperlinks, the effect of the CJEU's decision was that if a website communicated a copyright work to the internet at large, then it was not an infringement of the 'communication to the public' right to hyperlink to that copyright work using the same technical means (i.e. on a different website). That was because the hyperlinks in question were communicated to the same public that was taken into account by the copyright holders when they authorised the initial 'communication to the public', i.e. all Internet users had free access to both the original works and the hyperlinks, so there was no communication to a new public as a result of the hyperlink.

In the present case, the CJEU felt it had to somehow get around the clear statement in Svensson about what a 'communication to a new public' means in the context of a website.