Land Nordrhein-Westfalen v Dirk Renckhoff.
Date: 2018-08-07
14


As a preliminary point, it must be recalled that a photograph may be protected by copyright, provided, which it is for the national court to determine in each case, that it is the intellectual creation of the author reflecting his personality and expressing his free and creative choices in the production of that photograph (see, to that effect, judgment of 1 December 2011, Painer, C‑145/10, EU:C:2011:798, paragraph 94).
16


It follows that, subject to the exceptions and limitations laid down exhaustively in Article 5 of Directive 2001/29, any use of a work carried out by a third party without such prior consent must be regarded as infringing the copyright in that work (judgment of 16 November 2016, Soulier and Doke, C‑301/15, EU:C:2016:878, paragraph 34 and the case-law cited).
17


As Article 3(1) of Directive 2001/29 does not define the concept of ‘communication to the public’, the meaning and scope of that concept must be determined in light of the objectives pursued by that directive and the context in which the provision being interpreted is set (judgment of 14 June 2017, Stichting Brein, C‑610/15, EU:C:2017:456, paragraph 21 and the case-law cited).
18


In that regard, it should be borne in mind that it follows from recitals 4, 9 and 10 of Directive 2001/29 that the latter’s principal objective is to establish a high level of protection for authors, allowing them to obtain an appropriate reward for the use of their works, including on the occasion of communication to the public. It follows that the concept of ‘communication to the public’ must be interpreted broadly, as recital 23 of the directive expressly states (judgment of 14 June 2017, Stichting Brein, C‑610/15, EU:C:2017:456, paragraph 22 and the case-law cited).
19


As the Court has consistently held, it is clear from Article 3(1) of Directive 2001/29 that the concept of ‘communication to the public’ includes two cumulative criteria, namely an ‘act of communication’ of a work and the communication of that work to a ‘public’ (judgments of 16 March 2017, AKM, C‑138/16, EU:C:2017:218, paragraph 22, and of 14 June 2017, Stichting Brein, C‑610/15, EU:C:2017:456, paragraph 24 and the case-law cited).
20


As regards the first of those elements, that is the existence of an ‘act of communication’, as is clear from Article 3(1) of Directive 2001/29, for there to be such an act it is sufficient, in particular, that a work is made available to a public in such a way that the persons forming that public may access it, irrespective of whether or not they avail themselves of that opportunity (judgments of 13 February 2014, Svensson and Others, C‑466/12, EU:C:2014:76, paragraph 19, and of 14 June 2017, Stichting Brein, C‑610/15, EU:C:2017:456, paragraph 31 and the case-law cited).
22


So far as concerns the second of the abovementioned criteria, that is, that the protected work must in fact be communicated to a ‘public’, it follows from the case-law of the Court that the concept of ‘public’ refers to an indeterminate number of potential recipients and implies, moreover, a fairly large number of persons (judgments of 13 February 2014, Svensson and Others, C‑466/12, EU:C:2014:76, paragraph 21, and of 14 June 2017, Stichting Brein, C‑610/15, EU:C:2017:456, paragraph 27 and the case-law cited).
24


However, as is clear from settled case-law, in order to be treated as a ‘communication to the public’, the protected work must be communicated using specific technical means, different from those previously used or, failing that, to a ‘new public’, that is to say, to a public that was not already taken into account by the copyright holders when they authorised the initial communication to the public of their work (judgments of 13 February 2014, Svensson and Others, C‑466/12, EU:C:2014:76, paragraph 24; of 8 September 2016, GS Media, C‑160/15, EU:C:2016:644, paragraph 37; and of 14 June 2017, Stichting Brein, C‑610/15, EU:C:2017:456, paragraph 28).
29


In that connection, first, the Court has consistently held that, subject to the exceptions and limitations laid down in Article 5 of Directive 2001/29, all acts of reproduction or communication to the public of a work by a third party requires the prior consent of its author and that, under Article 3(1) of Directive 2001/29, authors have a right which is preventive in nature which allows them to intervene between possible users of their work and the communication to the public which such users might contemplate making, in order to prohibit such communication (see, to that effect, judgments of 31 May 2016, Reha Training, C‑117/15, EU:C:2016:379, paragraph 30; of 16 November 2016, Soulier and Doke, C‑301/15, EU:C:2016:878, paragraph 33; and of 14 June 2017, Stichting Brein, C‑610/15, EU:C:2017:456, paragraph 20 and the case-law cited).
31


Thus, it is clear that, even if the holder of the copyright holder decides no longer to communicate his work on the website on which it was initially communicated with his consent, that work would remain available on the website on which it had been newly posted. The Court has already held that the author of a work must be able to put an end to the exercise, by a third party, of rights of exploitation in digital format that he holds on that work, and to prohibit him from any future use in such a format, without having to submit beforehand to other formalities (see, by analogy, judgment of 16 November 2016, Soulier and Doke, C‑301/15, EU:C:2016:878, paragraph 51).
34


In addition to the fact that it would be contrary to the wording of Article 3(3) of Directive 2001/29, that rule would deprive the copyright holder of the opportunity to claim an appropriate reward for the use of his work, set out in recital 10 of that directive, even though, as the Court stated, the specific purpose of the intellectual property is, in particular, to ensure for the rightholders concerned protection of the right to exploit commercially the marketing or the making available of the protected subject matter, by the grant of licences in return for payment of an appropriate reward for each use of the protected subject matter (see, to that effect, judgment of 4 October 2011, Football Association Premier League and Others, C‑403/08 and C‑429/08, EU:C:2011:631, paragraphs 107 and 108).
36


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).
37


Furthermore, it is true the Court held, in particular in its judgment of 13 February 2014, Svensson and Others (C‑466/12, EU:C:2014:76, paragraphs 25 and 26), and in its order of 21 October 2014, BestWater International (C‑348/13, not published, EU:C:2014:2315, paragraph 16), regarding the making available of protected works by means of a clickable link referring to another website on which the original publication was made, that the public targeted by the original communication was all potential visitors to the website concerned, since, knowing that access to those works on that site was not subject to any restrictive measure, all internet users could access it freely. Therefore, it held that the publication of the works concerned by means of a clickable link, such as that at issue in the cases which gave rise to those judgments, did not result in a communication of those works to a new public.
40


However, unlike hyperlinks which, according to the case-law of the Court, contribute in particular to the sound operation of the internet by enabling the dissemination of information in that network characterised by the availability of immense amounts of information (judgment of 8 September 2016, GS Media, C‑160/15, EU:C:2016:644, paragraph 45), the publication on a website without the authorisation of the copyright holder of a work which was previously communicated on another website with the consent of that copyright holder does not contribute, to the same extent, to that objective.
41


Therefore, to allow such a posting without the copyright holder being able to rely on the rights laid down in Article 3(1) of Directive 2001/29 would fail to have regard to the fair balance, referred to in recitals 3 and 31 of that directive, which must be maintained in the digital environment between, on one hand, the interest of the holders of copyright and related rights in the protection of their intellectual property, guaranteed by Article 17(2) of the Charter of Fundamental Rights of the European Union and, on the other hand, the protection of the interests and fundamental rights of users of protected subject matter, in particular their freedom of expression and information guaranteed by Article 11 of the Charter of Fundamental Rights, as well as the public interest.
45


Lastly, third, in its judgment of 13 February 2014, Svensson and Others (C‑466/12, EU:C:2014:76, paragraphs 27 and 28), the Court, in order to conclude that the communication at issue in the case which gave rise to that judgment was not to a new public, emphasised the lack of any involvement by the administrator of the site on which the clickable link had been inserted, which allowed access to the works concerned on the site on which it had been initially communicated, with the consent of the copyright holder.