C-161/17 – Córdoba The CJEU decision is positive for photographers

In the “Cordoba” case decision released on 07.08, the CJEU has confirmed that Internet users must ask for a photographer’s permission before publishing their images, even if these were already freely accessible elsewhere online.

In the case at hand, the photograph of photographer Dirk Renckhoff had been used without his authorization on the website of a secondary school in Land Nordrhein-Westfallen. The photographer sued the school seeking 400 € damages.

The decision of the CJEU in favour of the photographer comes as a big relief for all visual authors and image providers, after the Advocate General’s opionion in May this year that had led to insecurity. If the Court of Justice had followed the opinion of the AG, the consequence would have been the introduction of Fair Use in European juridiction and the exhaustion of rights for any content published one time on the internet. The seriousness of this outcome prompted CEPIC, EVA, the European Federation of Journalists and Pyramide Europe had issued an common statement to the Court (an unsual step in a court proceedings).

Fortunately the Court of Justice of the European Union has not followed the Opinion of the Advocate General.

The Court recognises that a new authorization is necessary for the use of a photograph on a new website:

  • eventhough no technical protection measures had been put in place
  • although the picture had been credited on the new website

The Court clarifies the notion of a “new public” established by the Svenson jurisprudence

The Court notes that the Svenson jurisprudence may not be used in the present case. The photo accesses a “new public“, they say, and therefore requires a new authorization. The “public” of an online travel website, they argue, is not the same “public” as of a school website. Besides this is not the “public” the author has in mind when he provided his first authorization. Furthermore the Court raises the issue of control. In the Svenson’s case, the content (a press article) had been linked from another website, while in the Cordoba case, the content has been downloaded on the server of the student before being uploaded again on the school website. In the first case, explains the Court, the copyright user does not lose control over his work: if he/she deletes the content on the linked website, the content also disappears on the hosting website. By contrast, in the Cordoba case, the content will remain on the infringing hosting website even after the rightholder has deleted his content on the original website. Recognizing otherwise would be tantamount to an exhaustion of the rights of the photographer upon first publication of his/her work, conludes the Court of Justice.

The Court confirms that framing, even framing of photographs, is not a to be considered as communication to the public

If any had been left, but in coherence with its jurisprudence, the present decision removes any doubt that images may be framed from a website to another without any previous authorization.

In this decision, the Court confirms that Framing does not constitute a “communication to the public“. The Court reiterates that hyperlinks contribute to “the smooth functionning of the internet” while preserving the possibility for the rightholder to keep the control of his work, which is not the case if the content has been downloaded on a server before being up-loaded again.

Conclusion: While a gap remains and the possibility of circumvention, with framing being used as a favoured way for displaying photographs – because they will be free to use -,  the decision of the CJEU is good for photographers, image providers and all creatives. It is a clear statement in favour of a strong copyright protection online.

sf, 09.08.2018