Key facts of the case:
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.
Outcome of the case:
On those grounds, the Court (Second Chamber) hereby rules:
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.
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.
42) In that context, the Land of North Rhine-Westphalia argues that, in circumstances such as those at issue in the main proceedings, in weighing the interests at issue, account must be taken of the right to education, laid down in Article 14 of the Charter of Fundamental Rights. In particular, the action of the pupil concerned is covered by the exercise of that right, since the photograph was placed on the first page of the presentation written by her, for illustration purposes, as part of a language workshop. However, in that connection, it suffices to state that the findings set out in paragraph 35 of the present judgment, relating to the concept of ‘new public’, are not based on whether the illustration used by the pupil for her school presentation is educational in nature, but on the fact that the posting of that work on the school website made it accessible to all the visitors to that website.