Key facts of the case:
Reference for a preliminary ruling — Copyright and related rights in the information society — Concept of communication to the public — Making available to the public on an internet portal of a protected work available to all internet users on another internet portal — Situation in which the work has been copied onto a server without the consent of the copyright holder.
Outcome of the case:
In the light of the foregoing, I propose that the Court of Justice reply as follows to the question referred by the Bundesgerichtshof (Federal Court of Justice, Germany):
The inclusion on a school’s website of an educational work that includes a photographic image freely available to any internet user free of charge, in that the image already appeared on the internet portal of a travel magazine with no warnings regarding restrictions on use, when there is no profit motive and the source is cited, does not constitute a making available 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.
31) It also considers that the absence of consent from the holder of the copyright for the photograph to be copied onto the school’s server and subsequently published on the internet distinguishes this case from cases where hyperlinks or framing were used. ( 17 ) Consequently, the copyright provided for in Article 17(2) of the Charter of Fundamental Rights of the European Union (‘the Charter’) will prevail over the users’ right to freedom of expression and of information in Article 11 of the Charter.
40) The Land argues that, alongside Article 17(2) of the Charter, on the defence of intellectual property, and Article 11, on freedom of expression and information, an assessment of the conflicting interests involved must take into account the right to education, enshrined in Article 14 of the Charter, on the basis of which the pupil included the photo to illustrate her work. In its view, the right to create portals, like links, also contributes to the sound operation of the internet, at least when the works are already freely available on the internet.
79) To do otherwise would be to restrict the use of information which is provided in huge quantities by the internet. Such a restriction could undermine the freedoms of expression and of information enshrined in Article 11 of the Charter. In the present case, it would also prejudice the right to education in Article 14(1) of the Charter.
113) Unless I am mistaken, this is the first time that the Court of Justice has to address the exception in Article 5(3)(a). Although its case-law requires the scope of exceptions and limitations to be interpreted restrictively, given that they could affect property rights in intellectual creations, ( 78 ) it must not be forgotten that the right to education is also enshrined in Article 14(1) of the Charter. ( 79 ) The interpretation must therefore observe a reasonable balance between the two rights.
115) An interpretation that gives greater weight to the right to education, within the meaning of Article 14(1) of the Charter, may emphasise the active, rather than purely passive, role of the pupils, allowing them, too, to use images protected by copyright for the same teaching (or, in their case, learning) purpose. This thus helps education to achieve its main task, which is the full development of human personality. ( 80 )