Online Photos Can't Simply Be Republished, EU Court Rules (politico.eu)

The European Court of Justice ruled Tuesday that internet users must ask for a photographer's permission before posting their images online, even if the photos were already freely accessible on other websites. "The posting on a website of a photograph that was freely accessible on another website with the consent of the author requires a new authorization by that author," the EU's top court said in a statement. Politico reports: The court had been asked to decide on a case in Germany, in which a secondary school student downloaded and used a photo that had been freely accessible on a travel website for a school project. The photo was later posted on the school's website as well. The photographer who took the picture argued the school's use of his photo was a copyright infringement because he only gave the travel site permission to use it, and claimed damages amounting to 400 euros (~$463). The ECJ ruled in the photographer's favor, saying that under the EU's Copyright Directive, the school should have gotten his approval before publishing the photo.

Comments

Nothing new

[El_Muerte_TDS]

This is now copyright law works. Just because one person has permission to publish does not mean every body has the right. Just check for possible licenses attached to the pictures. For example a CC-SA is explicit permission to republish. No explicit mention of license = no clear permission.

Re:Nothing new

[AmiMoJo]

I'm just amazed that the school bothered to even challenge this, it's so blindingly obvious.

Re:Nothing new

[suutar]

no clear permission, true. But might be fair use, depending. Unfortunately there are no guildelines saying "this is fair use", there are only court cases where fair use was successfully asserted.

Re:Nothing new

[DontBeAMoran]

"For 400€ of damages no less."

This is about the law, about applying it and with sane amounts.

I never understood the USA courts asking for millions of dollars for every little fucking thing, when 99.999999999% of people would never be able to pay even 0.1% of such a ruling.

Re:Nothing new

[Anonymous Coward]

The only thing this addresses is the entitlement of millennials. They think that just because they can access something online, that they are free to use it for anything they want.

The photographers are the ones with the misplaced sense of entitlement. They are the ones wielding an artificial, government-granted privilege as though it were some kind of natural right.

Also, I dislike this "millennials" charicature. Not everyone born in this age range is entitled, irrational, and deeply intolerant. There are civilized and respectful young people out there, I'm sure of it.

Re: Nothing new

[Anonymous Coward]

Fair use doctrine has explicit clauses that allow the use of photographs or video clips for educational purposes / student projects in the U.S.

Re:Nothing new

[lgw]

Educational use, not for profit, does not affect the market for the original - sounds like fair use. The school's copy of the project, not so much..

Re:Nothing new

[jrumney]

Strictly speaking, copyright law has always been like this, but it's a bit of a dick move to go after a school student. Cutting photos out of magazines for school projects that ended up displayed on the walls of the school hall or entranceway if they were good has been a normal part of school activity for decades. That is now happens online where everyone can see it is not a reason to suddenly start enforcing the strictest interpretation of the law against non-commercial probably-fair use.

Re: Nothing new

[Hognoxious]

It's not a blanket exception.

Of the four factors listed here, this seems to fail 1 and 3.

Re:Nothing new

[Mathinker]

Funny you should ask. The answer is: no one knows! This mess is all because of a large range of opinion among both the public and the judiciary about how copyright should work; there is even a large range of conceptualization around these concepts (typically "property" versus "monopoly" --- practically no one thinks about it as an "usufruct", which is my favorite).

See the recent ruling: https://www.eff.org/deeplinks/...

Re:Nothing new

[Jason Levine]

Unfortunately, too many people think "posted to the Internet" = "public domain." This includes people who think they can just grab any photo online and do with it what they want and companies who need a photo for an advertisement and just grab something they see online. Though this seems like a common sense ruling, it's nice to see it reiterated that "it was posted online" is not a license to do whatever you like with the photo (absent a clear license or other statement giving you that permission).

Did I hear that right?

[Cytotoxic]

Copyright protected images retain their copyright? Even if someone publishes them on a website that is accessible to the public?

I'm shocked at this disturbing turn of events. Next they'll be claiming that news articles retain their copyright even after they've been published online!

How is this even news? We have a lot of anti-IP folks around here, but even they have to acknowledge that this has been settled law... well, as long as there has been an internet. Longer, I guess. I mean, you couldn't just cut a photo out of a magazine and use it in your own ad copy either.

Re:Did I hear that right?

[Verdatum]

https://www.scribd.com/documen...

It wasn't for advertising, it was informative. "Go to the building that looks like this building, because this is an image of the building." They immediately removed the photo when the owner complained, showing good faith. They weren't profiting from the image, nor were they selling the image. The cropped image is not a sufficient replacement for the original image. And posting the photo on an obscure website that you'd only hit when looking for information about a film festival does not take away the copyright owner's ability to profit from the image. Similar to the concept that you can't copyright a photo of something that is ineligible for copyright, such as a photo of a public-domain painting; you can't copyright very much about a photo of a building. You can copyright composition (which was altered via cropping), camera settings, post-processing, things that make photography an art. But the defendant was deemed to solely be using the image for it's factual content, namely the appearance of a building. I could possibly see different judges reaching different rulings on the points, but this particular judgement is a reasonable one: what they were doing fell under fair use.

Some media outlets blew the story out of proportion, stating that if you find an image on the internet and you crop it, then it's fair use. And while that's potentially true, the ruling only applies to cases just like this one. So it's really no big deal.

I do suspect you're right about that story being why this EU decision was deemed worth writing about. Thanks for that!

In other news

[Verdatum]

An EU court ruled that taking an existing invention and hot-gluing a clock on the side does not count as a totally new invention.

Re:Yet...

[Anonymous Coward]

Pre-Brexit:

- Sterling recovering after financial crisis as one of the best performers of developed currencies

- UK fastest growing developed economy in the world

- Fuel, food, and clothing prices lowest for 5 years

- Job market growing at fastest pace

- Crimes at an all time low

Post-Brexit vote:

- Pound sterling at it's worst point in 4 decades

- UK slowest growing developed economy in the world

- Fuel, food, and clothing prices at their highest ever

- Job market growth slowing

- Crimes reaching new highs

Post-Brexit:

- Negative trends intensifying in the face of outcomes that leave us further and further away from the EU as possible.

- UK being run as a dictatorship as hard Brexit is forced upon it by rich banks and toffs like Farage and Rees-Mogg whilst the government is propped by by a billion pound bribe to the political wing of a literal terrorist organisation (the DUP) and despite there having never at any point in time been any democratic mandate for the DUP to be in power, nor for hard Brexit, and the only legitimate mandate existing being for soft Brexit. In the 2017 elections 56% of people voted for soft Brexit parties, in the 2018 local elections 60% of people voted for soft Brexit parties. All polls have shown consistent support only for Brexit and NEVER at any point for hard Brexit, and all recent polls have now turned against Brexit altogether.

So in other words, you have to be a raving fucking idiot to think Brexit isn't a terrible thing. It's tearing the UK apart on every level, socially, politically, and economically.

Meanwhile, the people behind it like Arron Banks whose wife is literally a genuinely exposed Russian spy laugh at the retards who voted for it openly stating they led them down a garden path and lied like crazy to them.

Literally the only way you can think Brexit is good is if you think it's better to have a weaker economy, weaker country, undemocratic more authoritarian rule, and a divided country with increased crime.

It takes a special kind of retard to call that "good". These things are all factual, unlike the entirety of the Brexit campaigns, all of which are now under criminal investigation for breaching spending limits using Russian money.

Student work

[crow]

In related news, students do not retain any copyright ownership of their work that they turn in to a school. The school can post it online without compensation to the student or permission.

High court, simple case

[manu0601]

It is amazing such a simple case managed to move up to EU Court of Justice.

What did defendant expect?

Good

[pubwvj]

Good. This is how copyright works. Just because I put my photos onto my website or let someone else use my photos DOES NOT GIVE ANYONE ELSE PERMISSION.

I've dealt with this repeatedly. I send the offender a bill for $500. They pay and then they get to use the photo with permission. If they don't pay I contact their ISP, web host, their organization and anyone else to let them know this person is stealing photos from me. Their ISP and web host routinely will shut people down for having stolen copyrighted material.

Don't steal.

Re:Good

[Anonymous Coward]

Copyright infringement...yes. Theft...no!

UK definition of THEFT:

“A person is guilty of theft if he dishonestly appropriates property belonging to another with the intention of permanently depriving the other of it; and “thief” and “steal” shall be construed accordingly.”

So in your case it can’t be theft, as you still have your photo.

Using your definition, a client not paying me for a day’s work, and using the material I’ve created for them, would be theft...but it clearly isn’t.

Re:Embedding a link to the image should be fine

[butzwonker]

Sure, as long as the person who links to my image doesn't mind if I replace it with dickbutt or the image of a huge erect penis at any time, that should be fine.

Fair use ?

[DrYak]

It could have been considered to fall under the various fair use exemption :
  - This was done for a school project. I.e.: education.
  - The student didn't slurp the whole website, only a small illustrative part (a single photo).

The school DID have reasons to try to challenge the claim.

Re:Fair use ?

[Hunter-Killer]

Fair use is a US doctrine and the closest EU equivalent, Directive 2001/29/EC Article 5(3) doesn't have an education exemption. Furthermore, Article 5(3) is optional and not necessarily accepted by each member state.

Fair use laws

[DrYak]

Sorry, my fault.

Sometime, I forget that I live in one of these countries with slightly saner copyright laws, which also covers specifically school use (sorry only available in FR/DE/IT, no EN), one of the example case is the exact situation from TFA. Here around, the single mistake would have been making the web archive of the student presentation fully public. Everything else is perfectly tolerated (it's for educational purpose, and the picture is a small part of the website).

Now back to Germany : it seems that is has been going through some reform and under the latest variation of these law (according to these sources, I'm to lazy and bad at German legalese to check the original law), there *seems to be indeed* a "fair-use" like exception - up to 15% of a work can be duplicated to be used in teachings, including third party viewing and showing it to the public.

I don't think that the website consisted of entirely one single image. And thus the photo should be definitely less than 15% of the content (more over, the source mention that a single image can be used in its entirety).

The only nitpicking would be whether the use of the secondary school was commercial/advertise (they use the paper to advertise what their students do and to display the kind of education the school is giving... that would be a stretch, it's a public school and these don't advertise in Germany AFAIK) or whether it was educational (the school made it public as a paper informing on a subject written by a student).

So according to the laws in vigor in Germany, the School was completely right to challenge the claim.

Then the German Federal Court escalated the question to the European Court, which ruled this way (photo copyright is photo copyright, no matter the educational context or the proportion that this photo occupies within the orignal website).

It might seem trivial, but copyright vs fair use is hotly debated here around in Europe. It was certainly when the law got reformed in Switzerland, and apparently it is currently in Germany. This EU judging might be the manifestation of such : people and institution who weren't happy with how the law got reformed and make all the can to push it toward their goal. (And I almost expect various members of Pirate Party to soon show up and try pulling in the opposite direction).