Case C‑161/17

Land Nordrhein-Westfalen

v

Dirk Renckhoff

(Request for a preliminary ruling from the Bundesgerichtshof)

(Reference for a preliminary ruling — Copyright and related rights — Directive 2001/29/EC — Information society — Harmonisation of certain aspects of copyright and related rights — Article 3(1) — Communication to the public — Concept — Publication online, without the consent of the rightholder, of a photograph previously published on another website without any restrictions and with the consent of the rightholder — New public)

Summary — Judgment of the Court (Second Chamber), 7 August 2018

1. Approximation of laws — Copyright and related rights — Directive 2001/29 — Scope — Photography — Included — Conditions — Intellectual creation of the author reflecting his personality and expressing his free and creative choices in the production of that photograph — Assessment by the national court

   (European Parliament and Council Directive 2001/29, Art. 1)

2. Approximation of laws — Copyright and related rights — Directive 2001/29 — Harmonisation of certain aspects of copyright and related rights in the information society — Communication to the public — Concept — Publication online, without the consent of the rightholder, of a photograph previously published on another website without any restrictions and with the consent of the rightholder — Included

   (European Parliament and Council Directive 2001/29, Art. 3(1))

1.  See the text of the decision.

   (see para. 14)

2.  The concept of ‘communication to the public’, within the meaning of Article 3(1) of Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society, must be interpreted as meaning that it covers the posting on one website of a photograph previously posted, without any restriction preventing it from being downloaded and with the consent of the copyright holder, on another website.

   Taking account of those elements, it must be held, in the light of the case-law set out in paragraph 24 of the present judgment, that the posting of a work protected by copyright on one website other than that on which the initial communication was made with the consent of the copyright holder, in circumstances such as those at issue in the main proceedings, must be treated as making such a work 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 site and not of users of the website on which the work was subsequently published without the consent of the rightholder, or other internet users. It is irrelevant to the objective considerations set out in paragraphs 29 to 35 of the present judgment that, as in the case in the main proceedings, the copyright holder did not limit the ways in which internet users could use the photograph. The Court has already held that the enjoyment and the exercise of the right provided for in Article 3(1) of Directive 2001/29 may not be subject to any formality (see, to that effect, judgment of 16 November 2016, Soulier and Doke, C‑301/15, EU:C:2016:878, paragraph 50).

   (see paras 35, 36, 47, operative part)