ECJ Ruling In The Renckhoff Case

It's impossible to imagine social media and websites without numerous photos, images and graphics plastered all over them. Indeed, using and sharing photos today is easier than ever. However, as the European Court of Justice (ECJ) recently confirmed in the Renckhoff case, this activity must respect the copyright of creators.

In its judgement of 7 August this year (C-161/17) the ECJ was asked to rule whether Internet users should be regarded as one large audience, or a series of intermingling and constantly changing groups, and whether the creator of a visual work can choose which of these groups he wants to share his work with.

The decision of the ECJ was handed down in a case brought by German photographer Dirk Renckhoff against the region of North Rhine-Westphalia. A pupil of a public school used a photo taken by Mr Renckhoff without his permission. It was made available free of charge by the photographer to a travel portal, then copied by the pupil and used as part of a school project, and finally placed on the school's website. It is worth noting that the photo on the travel portal was in no way protected against copying or contained a statement prohibiting its re-use, and the student provided information on the source of the photo in her project.

In answering the national court's question, the ECJ had to assess whether the inclusion of the photograph on the school's website was a 'communication to the public', to be decided by the author pursuant to Article 3(1) of Directive 2001/29. Central to this issue is the question of whether different websites have different audiences despite universal access to the Internet?

In his opinion in the case of 25 April this year, the Advocate General rejected the notion of segmentation of Internet users, in particular with regard to pages and elements placed on them that are not subject to additional security measures against access or copying. The Advocate General thus sought to impose on the author of a work an obligation to provide publication conditions that do not create the impression of full freedom of access to the work. In short, in the Advocate...

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