Take care when using online photographs

With so much material online these days it can be easy to inadvertently infringe copyright by reposting photographs and other materials.

The European Court of Justice (ECJ) recently considered this issue in the case of Land Nordrhein-Westfalen v Renckhoff.

The case arose after a pupil in Germany downloaded a photograph taken by Mr Dirk Renckhoff, which was freely available from an online travel portal. The photograph was used by the pupil in a school presentation which was subsequently posted by the school on another website.

There was no restriction preventing the photograph being downloaded from the travel portal but the school didn’t obtain Mr Renckhoff’s consent to re-use the photograph and he claimed the school had infringed his copyright.

The ECJ found in Mr Renckhoff’s favour. Use of a copyright work without the prior consent of the owner is infringement and re-posting the photograph on another website constituted re-use (the school was making the photograph available to a ‘new public’) – so the school should have obtained Mr Renckhoff’s consent.

The ECJ differentiated between re-posting protected content online and making it available by using a hyperlink to a website on which it was originally posted. The ECJ pointed out that where a hyperlink is used:

• The content is not being made available to a ‘new public’ (but instead the same public as was targeted by the original website).
• The copyright owner may remove their work at any time, rendering the hyperlink obsolete.

The ruling will no doubt be welcomed by those in the creative industries since it confirms the rights of copyright owners to control the communication of the works they post online, even if they have not imposed explicit restrictions on the re-use of those works.

It’s also a timely reminder for those thinking about using online content that care needs to be taken before re-posting material.