Posting a photograph that was published on another website, made with the same technical means, without any restrictive measures and with consent of the copyright holder falls under the concept “communication to the public”: There is an “act of communication” when such posting gives visitors to the website on which it is posted the opportunity to access the photograph on that website. There is communication to a “public” when it covers all potential users of the website on which the photograph is posted. There is a “new public” when that public was not already taken into account by the copyright holders when they authorised the initial communication to the public of their work. Case-law about hyperlinks not applicable.
Court of Justice of the European Union Press Release: "[...] A photographer authorised the operators of a travel website to publish one of his photographs on their website. A pupil at a secondary school in Land North Rhein-Westphalia in Germany (Gesamtshcule de Waltrop) downloaded that photograph from the travel website (on which it was freely accessible) in order to illustrate a school presentation. It was then published on the school website. In that context, the Bundesgerichtshof (Federal Court of Justice, Germany) asks the Court of Justice to interpret the Copyright Directive, 1 according to which the author of a work has the exclusive right to authorise or prohibit any communication to the public of that work. 2 The Bundesgerichtshof wishes to know whether the concept of ‘communication to the public’ covers the posting on a website of a photograph which has been previously published on another website without any restrictions preventing it from being downloaded and with the consent of the copyright holder. In the present case, the posting on one website of a photograph previously posted on another website, after it has been first copied onto a private server, must be treated as ‘making available’ and therefore, an ‘act of communication’ within the meaning of Article 3(1) of Directive 2001/29. Such posting on the internet gives visitors to the website on which it is posted (in this case the school website) the opportunity to access the photograph on that website. 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 (OJ 2001 L 167, p. 10). Article 3(1) of the directive. Furthermore, the posting of a work protected by copyright on a website other than that on which it was initially communicated with the consent of the copyright holder must, in circumstances such as those at issue, be regarded as making available to a new public. In such circumstances, the public taken into account by the copyright holder when he consented to the communication of his work on the website on which it was originally published is composed solely of users of that website, and not (1) of users of the website on which the work was subsequently published without the consent of the right holder or (2) other internet users.
Read the full press release here.