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Court of Justice sees sense over copying

THE Court of Justice of the European Union has ruled, sensibly, that if someone copies work (in this case a photo) from one website and posts it on another website they need the permission of the author (in this case a photographer).

The Freelance would rather this had been decided on a diferent case, but at least it's decided.

The Court (often incorrectly called the European Court of Justice) had received a formal Opinion from its Advocate-General that recommended a finding that once anything was published on the web anyone could copy it to their own website - as reported in May. This followed on from an earlier judgement that linking to a work on another website, or even "embedding" it in your website, did not constitute "communication to a new public". That's a bit of jargon it invented to deal with that case and the "right of making available" enshrined in EU and international law.

The European Federation of Journalists wrote with other organisations to the Court expressing concern over the implications of this Opinion. So, in even stronger terms, did the Association Littéraire et Artistique Internationale (ALAI), the organisation for authors' rights professionals.

The current case started with a photo of the city of Cordoba that photographer Dirk Renkhoff had licensed to a travel website. A school student downloaded the photo to illustrate a school presentation, which the school published on its website. Renckhoff sued the regional government - Land North Rhein Westphalia - seeking an order prohibiting the reproduction of his photograph and claiming damages of €400.

The German court referred the question of infringement to the CJEU, whose statement summarises its conclusions thus:

...the posting on one website of a photograph previously posted on another website, after it has been first copied onto a private server, must be treated as "making available" and therefore, an "act of communication" within the meaning of Article 3(1) of Directive 2001/29. Such posting on the internet gives visitors to the website on which it is posted (in this case the school website) the opportunity to access the photograph on that website.

Furthermore, the posting of a work protected by copyright on a website other than that on which it was initially communicated with the consent of the copyright holder must, in circumstances such as those at issue, be regarded as making 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 is composed solely of users of that website, and not (1) of users of the website on which the work was subsequently published without the consent of the right holder or (2) other internet users.

However, the earlier ruling that linking does not constitute "making available to a new public" (in the fiendishly complicated case Svensson) still stands:

In that connection, the Court observes that such posting must be distinguished from the making available of protected works by means of clickable link leading to another website on which the initial communication was made.

We can breathe a sigh of relief, however.