A recent decision of the Court of Justice of the European Union has clarified that downloading and posting a document originally on another website is copyright infringement.
The Facts
A photograph was posted on an online travel portal with the photographer’s consent. There were no restrictive measures preventing it from being downloaded. A pupil caused a copy of the photo to be posted on a school website as part of a presentation. The photographer brought proceedings in the German courts for infringement against the entity responsible for the school.
The Proceedings Below
The action was allowed and both parties appealed. On appeal it was found that the photograph was protected by copyright and that posting it on the school website infringed the photographer’s reproduction right and the right to make the work available to the public.
That the photograph was already accessible to the public without restriction on the Internet before the acts in issue was irrelevant, since the reproduction of the photograph on the server and making it available to the public on the school website led to a ‘disconnection’ with the initial publication on the online travel portal.
The Question
On further appeal the court directed this question to the Court of Justice of the EU: ‘Does the inclusion of a work— which is freely accessible to all internet users on a third-party website with the consent of the copyright holder—on a person’s own publicly accessible website constitute a making available of that work to the public within the meaning of the relevant Directive if the work is first copied onto a server and is uploaded from there to that person’s own website?
The Decision
In response to the question the court said that the concept of ‘communication to the public’ included two cumulative criteria, namely an ‘act of communication’ of a work and the communication of that work to a ‘public’.
An Act of Communication
For there to be such an act it was sufficient that a work was made available to a public in such a way that the persons forming that public may access it, irrespective of whether or not they avail themselves of that opportunity.
The posting on one website of a photograph previously posted on another website, after it has been copied onto a private server, must be treated as ‘making available’ and therefore, an ‘act of communication’ within the meaning of the Directive. Such a posting gives visitors to the website on which it is posted the opportunity to access the photograph on that website.
Communication of the Work to a ‘Public’
It has been established in existing case-law of the court that the concept of ‘public’ refers to an indeterminate number of potential recipients and implies a fairly large number of persons.
Here, the act of communication covered all potential users of the website on which the photograph was posted, and there was an indeterminate and fairly large number of such persons. As a result, the ‘public’ requirement was satisfied within the meaning of the case-law.
However, 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’; i.e., to a public that was not already taken into account by the copyright holder when they authorized the initial communication to the public of their work.
The court said that posting a work protected by copyright on a website other than that on which the initial communication was made with the consent of the copyright holder, must be treated as making the work available to a new public. In such circumstances, the public taken into account by the copyright holder when he consented to the communication of his work on the website on which it was originally published was composed solely of users of that site and not of users of the website on which the work was published without his consent.
It was also irrelevant that the copyright holder did not limit how Internet users could use the photograph. The court has previously held that the enjoyment and the exercise of the right may not be subject to any formality.
The Canadian Position
The provisions in the Copyright Act are similar to the EU Directive. This is because both Canada and the EU have implemented the WIPO Copyright Treaty which in Article 8 contains a similarly worded obligation. As a result, the decision of the CJEU will be persuasive in Canada.
Comment
This decision makes it very clear that copying works subject to copyright from the Internet can be actionable. It is not relevant that the copyright owner did not take any steps to prevent the downloading of the work. Posting such works on the Internet with the consent of the copyright owner is not an implied license or consent to copying by others.
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