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Dispute about photograph in school project referred to CJEU: Land Nordrhein-Westfalen v. Renckhoff

Chris JHolland14 August 2018

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.

 

Can the taste of a cheese be protected by copyright?

Chris JHolland6 August 2018

The World awaits the outcome of the deliberations of the Court of Justice of the European Union (CJEU) on this very question. Can the taste of Heks’nkaas be protected by copyright? Advocate General Wathelet’s opinion in the Levola Hengelo (C310/17) case was recently reported here on the IPKAT blog. The text of his opinion is not yet available but the AG’s answer is clearly “no.”
You might think that the answer is obvious, but to get to his conclusion the AG examines some of the fundamentals of EU copyright law, such as:
What are the limits of what qualifies as a “work” in the Infosoc Directive (2001/29)?
Is there a “fixation” requirement to qualify for copyright protection in EU law (as there is in UK law)?
The Court of Justice will eventually make a ruling which may or may not concur with the AG’s opinion. Will the Court confirm AG Wathelet’s standing as the “big cheese” of copyright law? We will have to wait and see!

Digital Images: New IPO Notice

Chris JHolland4 March 2016

The UK Intellectual Property Office has published a revised IPO Copyright Notice on “Digital Images, Photographs and the internet” (November 2015). The Notice provides a clear and helpful explanation of this whole area of copyright, but there is a significant change, which is worth highlighting,  in way that it deals with digital images of earler artistic works:

“…according to the Court of Justice of the
European Union which has effect in UK law, copyright
can only subsist in subject matter that is original in the
sense that it is the author’s own ‘intellectual creation’.
Given this criteria (sic), it seems unlikely that what is merely
a retouched, digitised image of an older work can
be considered as ‘original’. This is because there will
generally be minimal scope for a creator to exercise
free and creative choices if their aim is simply to make a
faithful reproduction of an existing work”
(Crown copyright. Extract reproduced under the Open Government Licence)
It is interesting that this reinforces the point that in the case of a straight forward digital image of a work of art which is itself out of copyright it is unlikley that the digital image will be protected by copyright under EU law. It is likely to fail the originality test. It is not uncommon for art galleries to claim copyright protection for the digital images of works in their collections which can be found on their websites. The 1709 Blog recently mentioned copyright challenges to Wikimedia from various art galleries on this very issue, the  re-use of digital images of works of art which are themselves in the public domain.

Darmstadt Revisited

Chris JHolland19 September 2014

The Court of Justice of the European Union gave its judgment in the case of the Technical University of Darmstadt and Eugen Ulmer on 11th September 2014. The case concerns the exception in the EU Copyright Directive which allows copyright works to be made available on “dedicated terminals” by libraries. This is topical in the UK because the dedicated terminals exception (DTE) was introduced as Section 40B of the Copyright, Patents and Designs Act 1988 in June.

The publisher Eugen Ulmer KG is taking legal action against the University, which has chosen to make use of the DTE in order to digitise and make available a recent history textbook published by Ulmer. In various respects this is a test case. The Court has answered the questions raised by the German court in a way which is similar to the view of the Advocate General’s Opinion (Blog post 2nd September 2014):

  • The fact that the publisher has offered a licence for the e-book version of the work does not mean that the University is subject to purchase or licensing terms, which would prevent it making the book available.
  • Member states may allow libraries to digitise works in order to make them available via dedicated terminals.
  • The DTE does not permit copying of the work by library users either in terms of printing or digital copies. It is simply an exception to the restriction on Communicating to the Public. However other exceptions may allow copying as long as the relevant conditions are met.

The case brings out interesting differences between UK and German copyright legislation, such as the condition under the German version of the DTE that the number of digital “copies” made available cannot exceed the number of paper copies purchased. There is also an emphasis of the concept of “adequate remuneration” for rights owners in the judgment – presumably provided via the German system of levies on copying equipment, which has no equivalent in the UK. At the moment we cannot be sure of the relevance the CJEU judgment has for UK libraries.

Monkey Business and EU Copyright Law

Chris JHolland7 August 2014

The story of the copyright disagreement between the wildlife photographer and Wikipedia about the famous “monkey selfie”( See here for the BBC’s coverage ) sheds an interesting light on  the minimum requirements for copyright to subsist in a photograph under EU law.

This was discussed in the recent case before the European Court of Justice of Painer v. Standard Verlags GmbH (C-145/10). The photograph must be “…an intellectual creation of the author reflecting his/her personality and expressing his/her free and creative choices in the production of that photograph”.

Perhaps one could argue that leaving the camera where the macaque could get its hands on it demonstrates a “free and creative choice”, but on the face of it the photographer’s case that he can claim copyright does not seem that strong.

There is another way of looking at it: if the photographer had taken the photographs himself, then he could certainly claim copyright and would not suffer any loss of income from the reuse of the photographs.  On the other hand, the value of the increased publicity for his work which has come about because of the role played by the macaque could be priceless.