The Renckhoff case, C-161/17 is fascinating for a number of reasons: Firstly there is the bizarre fact that the reuse of a photograph of an historic bridge in Cordoba, copied from an online travel magazine and used in the Spanish language project of a school pupil, posted on the school’s website, should require a decision from the Court of Justice of the European Union. The words “sledgehammer” and “nut” spring to mind.

Secondly the conclusion of the Court is diametrically opposed to the lengthy preliminary opinion of its own Advocate General (in this case AG Campos Sanchez-Bordona). The Court does not always follow the opinion of the AG but in this case the contrast is quite striking and the Court does not address the reasons for this divergence of views.

Thirdly both the AG’s opinion and the judgment of the Court discuss the boundaries of the important concept of “communication to the public”. The latter is one of the restricted acts which are the preserve of the author (copyright owner). The question to be addressed by the CJEU was whether the re-posting on one website of a photograph previously posted without any (stated) restrictions and with the consent of the copyright holder on another website constitutes “communication to the public.” Both sites were freely available to users of the internet. If the answer is “yes” the re-use of the photograph is potentially  infringing, if “no” then it is not infringing.

The Court came to the conclusion that re-posting the photograph in these circumstances does count as “communication to the public” and is therefore infringing (unless in the given circumstances the re-use is covered by one of the exceptions to copyright ). There is interesting discussion of the concept of a “new public” which has become significant in copyright decisions by the CJEU and this discussion tends to reveal the limited usefulness of the “new public” concept in drawing a line between infringing and non-infringing reuse of copyright protected material. See also the coverage of this case on the IPKAT blog.

A recent enquiry concerned reading from various literary works at a University event. Do we need permission if the work is still in copyright? Actually there is an exception in the Copyright, Designs and Patents Act 1988 (CDPA) which is not often discussed. The exception in Section 59(1) permits the reading or recitation in public of a “reasonable extract” from a published literary and dramatic works. There are no restrictions about the context or the type of event, so it could be commercial. Similarly it is not subject to a “fair dealing” test (as are many of the more familiar exceptions in the CDPA), just the “reasonable extract” requirement:

“59 Public reading or recitation

(1) The reading or recitation in public by one person of a reasonable extract from a published literary or dramatic work does not infringe any copyright in the work if it is accompanied by a sufficient acknowledgement.

(2) Copyright in a work is not infringed by the making of a sound recording, or the communication to the public, of a reading or recitation which by virtue of subsection (1) does not infringe copyright in the work, provided that the recording or communication to the public consists mainly of material in relation to which it is not necessary to rely on that subsection.”

Section 59(2) even permits the making of a sound recording and communication to the public as long as they do not consist mainly of material which depends on this exception. That is, there needs to be more substantial content to the recording or the communication  in addition to the “reasonable extracts” from protected works.