Unauthorized re-posting of a publicly accessible photo on a website can infringe the rights of the photographer

Copyright reform is also noticeable in the decision-making practice of the Court of Justice of the European Union (CJEU).


For example, in C-161/17 Renckhoff, the CJEU stated that unauthorized repeated use of a publicly available photograph on a website may violate a photographer’s rights. In this particular case, the court dealt with a situation where it was possible to access ‒ on a school website ‒ a presentation written by one of the school’s pupils which included, by way of illustration, a photograph taken by Mr Renckhoff and which that pupil had downloaded from another website. The photograph was posted on the other website with the author’s consent and the pupil included a proper reference to that website.

The question was whether it is considered a use of a copyrighted work which requires consent if the work is first copied onto a server and is then uploaded from there to a person’s own website.

As countless times before, the CJEU worked with the term “new public” and stated 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 that work available to a new public.

The term “public transmission” then includes posting a photograph on a website ‒ other than that on which the photograph was originally posted ‒ without any restrictive measures preventing it from being downloaded and with the consent of the copyright holder.

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