Internet photos and copyright: There is still much need for information

Not only the new General Data Protection Ordinance (DSGVO) unsettles professional and amateur photographers (at least) May. In the course of the introduction of the GDPR, fundamental copyright issues returned to the focus of some courts. Now, at the request of the German Federal Court of Justice, the European Court of Justice interprets the European copyright directive in a dispute between a school in North Rhine-Westphalia and a photographer. The clear lesson from this case: There is still a lot of need for information. Attorney Christian Solmecke files the case.

What was the lawsuit about?

Background of the ECJ judgment was a dispute from Germany. A professional photographer had sued the state of North Rhine-Westphalia and the city of Waltrop for injunctive relief and 400 euros in damages, because on the website of the comprehensive school Waltrop a photo taken by him the Spanish city of Córdoba appeared. A student had copied the image for a presentation in the Spanish AG from the side of an online travel magazine, where it was without information to the author. She probably meant to behave properly by linking to the find page on which the original photo was to be found.


The latter was not thrilled to find his photo again on the Internet – on the homepage of the school. This had posted the speech of the Spanish-Schülerin namely the net, including the copyrighted photograph. It came, as it often happens in such cases: The professional photographer sued the city of Waltrop and the state of North Rhine-Westphalia for injunctive relief and damages

The photographer argued that he had only given the travel magazine a simple right of use that did not entitle him to sub-licensing to third parties. The use on the school website without his consent violates his rights. To clarify the case, the Federal Court of Justice had asked the ECJ to interpret the European Copyright Directive. The Federal Court of Justice should now decide in favor of the photographer.

According to the ECJ’s interpretation, students and schools on the Internet are not allowed to use freely accessible images for online published papers without the photographer’s consent. Except for clearly defined exceptions, any use of a work by a third party without prior consent constitutes copyright infringement, the European Court ruled in Luxembourg on Tuesday.

It does not matter if the work is downloadable from another website or not. Also, the school context and the non-existent intention to make profit are therefore irrelevant.

ECJ: Copyright on the Internet is not turned upside down

The European Court of Justice (ECJ) has thus made a legally unsurprising ruling on the copyright protection of photos on the Internet. Anyone who downloads a photo from a third-party website and uploads it to their own site without first asking the copyright owner acts in violation of copyright. Had the ECJ followed the Advocate General’s Opinion, a decision to that effect would have turned the entire Internet, as we know it, upside down.

Anyone who copies a copyrighted, third-party photo from a third-party website and uploads a new one is, as before, subject to copyright. Also, if the photo was freely accessible on the source page with the consent of the originator, it must agree again when it is downloaded to another website. Because of such a setting the photography is made accessible to a new public (Urt v. 07.08.2018, Az. C-161/17).

With this judgment, the European Union Court of Justice (ECJ) has left one stone after the other in copyright law. Creators can breathe easy, users should be disappointed. For the time being, there will be no “fair use” regulation in Europe, as in the USA.

Question submitted by the Federal Court of Justice to the ECJ

The litigation went through the instances and ultimately up to the Federal Court of Justice (BGH). However, because German copyright law is now based to a significant extent on the European Copyright Directive (2001/29 / EC), the Federal Court of Justice also referred the matter to the European Court of Justice (ECJ) in this case.

In general, the BGH wanted to know whether the school’s uploading of the picture was in fact a “public communication” within the meaning of Article 3 (1) of the directive. In principle, only the author of a work has the exclusive right to authorize or prohibit the public reproduction of this work. Specifically, the BGH was concerned with the question of whether the term “public view” covers the posting of a photo on a website, if this photo was previously published on another website with the consent of the copyright holder without a restriction preventing its downloading ,

The peculiarity of the case lay in the fact that the image had already been made freely accessible to all internet users on the travel magazine page with the permission of the copyright holder, and that the school’s website was also a public website of its own. It is possible that the second act is not a renewed public access to the photograph within the meaning of the Directive, because no new audience is reached.

ECJ: re-uploading without the consent of the author

If a photograph is protected by copyright, in principle, subject to the exceptions in Article 5 of the Directive, any use of the recording without the prior consent of the author is a copyright infringement. Finally, the Directive should provide a high level of protection for the authors in order to give them the opportunity to use their works and the like. a. receive a fair remuneration in case of a public communication.

In the present case, it should be classified as “making available” and consequently as “act of reproduction” if a photograph previously published on the website of the travel portal is posted on the school website. Such an attitude would allow visitors to the school website access to the photography in question on this website.

Posting on a website other than the one where the original rendition was made with the consent of the copyright holder is, in these circumstances, to be considered as making available to a new public. Because under such circumstances, the copyright owner had only thought of the visitors to the travel portal, which he had given the permission to use. He did not think of the users of a completely different website, to which the work could be uploaded without his consent, let alone other internet users. This already shows in the fact that he must have the opportunity to decide to have a picture taken from a website again, without it being found elsewhere without his consent on the Internet. If the original source is removed from the network, links to that source will not make it into the void, but a re-uploaded photo would still be searchable.

Links are allowed – if it stays with the link

Although the ECJ had decided in other proceedings on the question of linking, the mere linking did not lead to the reproduction of the works in question for a new public. But there is a difference between re-uploading a photo and just linking (including embedding and framing). These last cases had therefore been decided differently. Because unlike hyperlinks that contribute to the good functioning of the Internet, setting a work on a website without the consent of the copyright holder does not contribute to that goal to the same extent.

Nor did the fact that the copyright owner has limited the ability of internet users to use photography play any role here.

In the end, the school could not claim that this paper had been made for educational purposes. First, although the unit itself is a school contribution, it does not deal with public access to the internet.

Fair use rule not allowed in USA

The special thing about this case is now not the judgment of the ECJ. This was completely expectable and legally correct. Especially, then the tension now drops, which had built up the Advocate General’s Opinion on 25.04.2018. The latter responded to the question referred for a preliminary ruling: “Posting a school paper containing a photograph freely and freely accessible to all Internet users, without making any profit and quoting the source on a school website, does not constitute public access (…) if that picture was already published on the Internet portal of a travel magazine without any reference to restrictions of use. “

In that case, therefore, there is no public communication, because:

  • The image was free and accessible to all for free on the internet
  • The picture was published without reference to any restrictions of use of the author in the travel magazine
  • The student and the school had acted without profit
  • No new audience is reached – Internet is Internet
  • The source was specified

In the end, this reasoning would have led to the introduction of a kind of “fair use” regulation in Europe based on the American model. Private persons might have been given a free ticket to use foreign pictures from the net for their own purposes without asking the authors.

An appropriate judgment would have had a significant influence on the author’s ability to claim damages in such cases. However, this would not have changed the possibility that he could continue to claim that the school had removed the photograph by way of a claim for injunctive relief.

To the author:Christian Solmecke is a partner of the law firm WILDE BEUGER SOLMECKE and especially active in the fields of IT, media and internet law. In addition, he is the author of numerous legal publications in these areas.

With material from dpa

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