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On August 7, the Court of Justice of the European Union (CJEU) ruled in its judgment in case C-161/17 that the online posting of copyrighted public works that were previously available on another website constitutes a new “act of public communication” that requires additional consent from the copyright holder.

The case behind the ruling began in 2009, when photographer Dirk Renckhoff decided to take legal action against the regional state administration where a German school is located, because one of the school’s pupils had, as part of her schoolwork, downloaded one of Mr. Renckhoff’s photos from a travel site and published it on the school’s website without his consent, but on the grounds that the author had already published the photograph previously, and that it was available for any user to download. Mr. Renckhoff claimed that, as his photograph was protected by copyright, the school had infringed his reproduction rights by making the work available to the public.

Although the case did not seem very significant, it was sent to the CJEU for a preliminary ruling, because the German court had doubts about whether a requirement had been met that is enshrined in previous case law (Svensson et al.C-466/12GS Media C-160/15), in which for an action to be considered a public communication, it must have been published to a “new audience,” i.e., basically an audience not originally considered by the author when the work was originally published.

The CJEU found that the requirement of a “new audience” should be considered to have been met in this case, because although the alleged potential audience seemed to be the same in this case (all internet users), there was a fundamental difference to the cases the CJEU had previously heard. Here, the action in question did not consist in inserting a link to the work on another website; rather it involved a new posting of the work after it was downloaded, stored and then subsequently uploaded on another website.

The result of all of this was a new consequence: in this case, if a new communication to the public was ruled not to have occurred, the author would lose control of the initial communication of the work published on the internet, but this would not be the case if what was done was to include a link to the website where the work can be found elsewhere on the internet. Therefore, posting a photograph online on the internet entails a new communication, regardless of the one that was originally authorized.

The CJEU reinforced this line of thinking by adding that this specific circumstance substantially blocks or hinders authors from being able to exercise their right to not have their work communicated; therefore, not recognizing these rights would jeopardize the fair balance that must be ensured between copyright holders and the interests of users’ fundamental rights.

Regardless of whether these arguments are convincing, the fact remains that, by adding the element of “authors’ control over the initial communication of their work,” the CJEU’s conclusions in this case constitute a further step toward determining the long-debated criteria for defining the concept of “communication to the public” and the interpretation of article 3.1 of Directive 2001/29/EC, which grants this right to the authors of protected works.

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