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13 sierpnia 2018

Can I use a photo publicly available on the website on my own website?

The Court of Justice of the European Union (CJEU) answered a question put by a German court regarding the use of someone else’s authorship.
Case

The case was brought to the German court by the author of the photograph, whose photo was used and posted on the website (of a German school) without his consent. Author claims that he gave a right of use exclusively to the operators of the online travel portal and that the posting of the photograph on the school website infringes his copyright.

He requested the court to prohibit, on pain of financial penalty, from reproducing/having reproduced and/or making available/having made available to the public the photo and, in the alternative, from allowing school students to reproduce the photo for purposes of posting it on the internet. He also claimed payment of damages of EUR 400.

Question to the CJEU

The court had doubts about the interpretation of the provisions of the applicable EU directive (2001/29) and decided to stay proceedings and refer the question to the CJEU which the judges referred to as:

“Whether the concept of ‘communication to the public’, (..), must be interpreted as meaning that it covers the posting on one website of a photograph which has been previously published without restriction and with the consent of the copyright holder on another website.”

Let’s remind that Member States shall provide authors with the exclusive right to authorise or prohibit any communication to the public of their works, by wire or wireless means, including the making available to the public of their works in such a way that members of the public may access them from a place and at a time individually chosen by them.

Judgment of the CJEU

Having regard to all of the foregoing considerations, the answer to the question referred is that the concept of ‘communication to the public’, within the meaning of Directive 2001/29, 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.

In other words, you cannot use someone else’s photos on the website without the consent of the author (or the subject of copyright) despite the fact that the photograph is available with the consent of the author (or the subject of copyright) on another public website.

Source: judgment of the CJEU in case C-161/17.
In Polish: Czy umieszczoną na ogólnodostępnej stronie internetowej fotografię można użyć na swojej stronie?