The past August 7 the Court of Justice of the European Union spoke out once again in this ruling regarding the implementation of the right of public communication on the internet. As usual, the ruling already has its supporters, detractors, and diverse opinions. In this post, we will give ours.
The case originated from a Spanish assignment completed by a student at a school in the state of Rhineland, Germany. The student included a photograph of the city of Córdoba in her assignment, which she had previously downloaded from a freely accessible travel website. The school hung up on its website, also freely accessible, the work with photography, and this is where the issue becomes complicated. The author and owner of all rights to the photograph was a professional photographer who had licensed its use solely to the operators of the travel website, so when they came across his work (assuming it can be classified as such, and not as mere photography, as we explained earlier), they here) on a different website, he felt that his copyright had been infringed. The matter ended up before the Bundesgerichtshof (Supreme Civil and Criminal Court in Germany), which, faced with the question of whether, given the circumstances of the case whether or not an act of public communication was taking place in the form of making available, decided to refer the following question to the Court of Justice of the European Union preliminary ruling:
“Does it constitute a made available to the public within the meaning of Article 3(1) of Directive 2001/29/EC, the insertion on a freely accessible website of a work that was already freely available to all Internet users and with the authorization of the copyright holder on a third-party website, when said work has first been copied to a server and from there uploaded to one's own website?”
The Court's response has been that it is indeed an act of public communication. because, as he reasons, the audience that was taken into account by the photographer holder of the rights when authorizing the communication of their work on the website where it was initially published would consist solely of users of that site, and not by users of the school's website, where the work was subsequently posted online without the copyright holder's authorization. The target audience of the latter site would therefore constitute new audience, and therefore an act of unauthorized disclosure occurs.
Indeed, in our opinion, it is indisputable that by uploading the photograph to the internet, the school is carrying out an act of public communication: it is making the photo accessible (communicating) to an indeterminate and potentially large number of people (public), at the time and from the place of their choosing (method of making it available). However, the assessment of whether or not a new audience carried out by the Court, we believe it is both erroneous and irrelevant.
It is irrelevant because in the case at hand, as the Court itself eloquently and paradoxically argues, the posting of the work on the school's website constitutes a new communication, direct and independent of the communication initially authorized. This prevents, despite the defendant's claims, the analogous application of the doctrine endorsed by numerous case law (see cases Svensson, Movie player, Gs-media, Bestwater) for indirect public communication via links, according to which the insertion of a link on a website that redirectsRefers to another website where a work was initially communicated without restrictive measures and with the authorization of the copyright holder. does not constitute an act of public communication because it is not aimed at a new audience and different from the one initially desired by the rights holder. The importance of this distinction lies essentially in the capacity of the rights holder to control the effective use of their workAs a result of this direct and independent communication, the work could remain available on the school's website and any others that imitated its conduct, even if the photographer decided to remove the photograph from the travel website where it was initially communicated with his authorization. If, on the other hand, the student had included a link redirecting to the original site where the photograph was located, and the owner had decided to remove it, the link would lose its usefulness. Therefore, the cornerstone for assessing an act of communication is not the existence of a new audience, but the existence of a new, direct, and independent act of communication.
This is clearly explained in paragraph 44 of the judgment, which reads as follows:
“Well, with regard to the act of communication that constitutes the insertion, on a website, of a link that redirects to a work previously communicated with the authorization of the copyright holder, the preventive nature of the holder's rights is guaranteed, in that, if the author no longer wishes to communicate his work on the website in question, he may remove it from the website on which he initially communicated it, rendering any link redirecting to it useless. On the other hand, in circumstances such as those at issue in the main proceedings, Posting a work on another website constitutes a new communication, independent of the communication initially authorized.. As a result of this launch, such work could remain available on the latter site, regardless of the author's prior consent and despite any action by which the rights holder decides to stop communicating their work on the website where it was initially communicated with their authorization.”
And there's more. Assuming that the issue revolves around new audiences, it is unreasonable to attempt to limit the target audience of a work. communicated on a website freely and without restriction, as is the case, only to users of that site. The target audience of any work that is made openly accessible via the internet (again, without including any measures to restrict or limit access to it) is, by definition, the entire Internet community. Therefore, in our opinion and contrary to the Court's argument, In this case, there is no new audience that is different from the previous one, a fact which, as we have just explained, is irrelevant in our opinion in this case..
Therefore, to recap, making a copyrighted work accessible on one's own website, even though that work is already freely accessible without any restrictions on another website with the authorization of its owner, constitutes a new act of public communication and therefore requires the express consent of the rights holder, otherwise the owner of the second website would be infringing on your exclusive right to authorize or prohibit the public communication of your work. In other words, it would be illegal.
Reading the judgment, and considering the particular circumstances of this case, it is striking that the German court did not include among the questions referred for a preliminary ruling the possibility of limiting the already defined as an act of unlawful public communication within one of the limits to intellectual property rights. Specifically, with the Intellectual Property Law Spanish in hand, one misses an assessment of the possible application of the limit for uses for educational or scientific research purposes. Possibly, as the Advocate General points out in his conclusions, this is because the case cannot be subsumed under the description of the limit as incorporated into German law (remember that it is a limit recognized by the Directive 2001/29 but optional transposition, meaning that not all states will have included it in their legal texts, nor in the same way), but this is now a matter for the German court to resolve.
The development of the internet and the possibilities of consuming content on a massive scale, while providing intellectual property with a perfect medium for contributing to its dissemination and development, poses a constant threat. The boundaries of what is permitted are becoming increasingly blurred for users., bearing in mind that the average consumer is (badly) accustomed to enjoying all kinds of works (audiovisual, musical, literary) for free with a simple click. To expect that the mechanism for preventing copyright infringements will require ordinary internet users to be fully informed about what is and is not permitted, thus demanding a level of diligence far greater than that required of the rights holder themselves with regard to the use of their work, given how the internet works today, is, at the very least, disproportionate and disconnected from reality.
As argued by the Court, and as established in the main treaties and directives on intellectual property, copyright regulation must be interpreted broadly in order to provide a high level of protection, but we must not lose sight of other universal principles and rights such as free access to culture, education, and transparency and free accessibility of information on the internet.
[Article written by Patricia Fernández Céspedes]
