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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.

 

90 year old claims copyright in “vandalised” artwork

Chris JHolland22 August 2016

A 90 year old German woman on an organised visit for senior citizens to the Neues Museum in Nuremberg was misled by the instructions on a work of art in the form of a crossword puzzle. She followed the instructions to “insert words” using her biro. Unfortunately the Museum regarded this as vandalism and felt obliged to pursue criminal charges (for insurance related reasons). The artwork by Arthur Kopcke from the 1970s has been valued at around £68,000.

Hannelore K’s lawyer has rebutted the claims of the museum and has gone so far as to claim that by filling in the crossword Hannelore has created a separate work of art in which she can legitimately claim copyright. On that basis they are taking issue with the Museum for having Hannelore’s contribution to the work (the writing in biro)  removed and thereby destroying her own copyright-protected work.

The lawyer also claims that Hannelore K’s contribution has had the affect of increasing the value of the artwork by attracting media attention to an artist who is not very well known.

The story is reported fully in the Arstechnica Blog.

 

 

 

Copyright in Goebbels’s Diaries

Chris JHolland24 April 2015

A biography of Joseph Goebbels by Peter Longerich, a prominent historian at Royal Holloway College specialising in modern German history, has stirred up a dispute about the copyright in Goebbels’s diaries, which has been widely reported on internet news sites. The original, German version of the biography was published in 2010 and the English language edition is due next month. As you might expect in a biography, Longerich quotes extensively from the diaries kept by Goebbels.

The basic copyright term in Germany is the author’s lifetime plus 70 years (as in the UK), so Goebbels’s works are in copyright until 2016. Nevertheless the publishers were surprised to be pursed for infringement of copyright in the diaries by lawyers on behalf of Goebbels’s estate. It is common knowledge that Goebbels’s immediate family died in Hitler’s bunker, so presumably the estate has been inherited by more distant relatives.

This raises an obvious moral question about family members making money from the diaries of this particular individual but it also illustrates the lengthy duration of copyright under EU legislation. In terms of UK copyright law, the diaries may be caught by the 2039 rule (which is nearly as difficult to understand as the offside rule!). If the diaries are truly an “unpublished work” then it looks as though they would indeed be in copyright for an additional 23 years in the UK.

Dedicated Terminals – An Interesting Case

Chris JHolland2 September 2014

Among the changes introduced on 1st June 2014 was the Exception permitting libraries and archives to make digitised versions of published works available to the public via dedicated terminals. This has been viewed by the Intellectual Property Office as a practical means of making older, fragile material available.

In  German higher education the equivalent exception seems to be given a much wider interpretation and this is being tested by a case before the Court of Justice of the European Union (C117/13).

The Technical University of Darmstadt has chosen to use the exception, which has been available in German law for some time, to justify digitising the full text of recently published text books in order to make them available on dedicated terminals.

This has been challenged by a publisher, Eugen Ulmer, using a specific work as a test case. The German Federal Court has referred a number of questions to the Court of Justice of the European Union (CJEU).

The Advocate General in his Opinion (which is preliminary and not always followed by the Court) has stated:

  • The University may digitise the work in order to make it available.
  • The publisher’s offer of a licence to use an e-book version makes no difference.
  • The exception does not include permission for users to copy the work, although that may follow from other exceptions – probably not stretching to digital copies.

The Court’s judgment is due on 11th September and should prove very interesting as the interpretation of this exception seems so different to that assumed in the UK.