http://ipkitten.blogspot.com/2019/07/copyright-infringement-confirmed-but-no.html

Last year, the Court of Justice of the EU (CJEU) ruled upon referral by the German Federal Court of Justice (Bundesgerichtshof, BGH) that the unauthorized reposting of a copyright work that is already available online constitutes an act of communication to the public within the meaning of Art. 3(1) of the InfoSoc Directive (C-161/17 – Renckhoff, Katpost here). The case revolved around a picture of the city of Cordoba, Spain, originally published (with the photographer’s consent) in an online travel magazine. The picture was eventually copied by a pupil into a paper and uploaded to the website of a German state school. The photographer sued the German Land of North Rhine-Westphalia (the local government that runs the school) for copyright infringement.
Following the CJEU’s ruling, the German Federal Court of Justice handed down its final decision in January 2019, but the judgment was only recently published on the Court’s website. 
The object of copyright infringement

Communication to the Public Was Not the Only Issue

On the issue of communication to the public, the judgment closely follows the CJEU’s ruling and confirms that the making available of the photography on the school website constitutes copyright infringement. The decision is nevertheless notable for a few other aspects of the case that had not been discussed in the CJEU ruling.
First, the Court stresses that the pupil’s acts not only infringed the photographer’s right to communication to the public, but, by creating a copy of the work on the school’s server, also the right to copy (§ 16 of the German Copyright Act, available in English here). This copy does not merely constitute a secondary preparatory act (“untergeordnete Vorbereitungshandlung”) of the communication to the public. It constitutes an autonomous act that adversely affects the copyright holder’s rights.
Second, the Court rejects the Respondent’s argument that the use of the photography is covered by statutory exceptions, notably the right of quotation, “incidental” use under German law (“unwesentliches Beiwerk” within the meaning of § 57 of the German Copyright Act) or the pedagogical use exception. On the latter topic, the Court underscores that it is doubtful whether the use of the photography indeed served the purpose of “illustration for teaching” and that, since the access to the work was not restricted to the pupils of the relevant course but was open for any visitor of the school website, there is no need to analyse this question any further.
Third, while the photographer is awarded a permanent injunction against the Respondent, the Court rejects the photographer’s damages claim. To understand why, one must have a closer look at the distinction the Court makes between acts committed by the direct infringer (i.e., the pupil) and those committed by the teacher.
Kat-related copyright work made by a pupil
Under German law, the Respondent, the Land being the entity running the school, is liable for acts that were committed by its employees or civil servants. In the case at hand, the teacher of the Spanish class from which the picture in the student paper eventually ended up online is liable for breaching his duty of care. The teacher failed to educate the pupils about obligations and risks in connection with using works available online and also failed to supervise the relevant pupil’s activities. On the former issue, the Court rejects the Land’s contention that the teacher could reasonably expect that the pupil’s parents educate their child regarding the avoidance of copyright infringement online. As the Court of Appeal, confirmed by the Federal Court of Justice, put it:
If schools foresee the use of the Internet by pupils in class as part of an educational mandate to teach media competence, it is necessary to inform pupils about existing obligations and risks in connection with the use of the Internet in schools, to instruct them and to monitor compliance with the rules to the extent required.
Therefore, the teacher, and consequently the Land, are responsible for a breach of the duty of care (“Störerhaftung”). However, the teacher does not qualify as a direct or indirect copyright infringer. In particular, it has not been established that the teacher intentionally participated in the pupil’s copyright infringement by providing support or assistance.
Under the applicable German law, if a civil servant has only committed negligence, a claim of damages against the state is ancillary to any claim against the direct infringer. In other words, it can only be asserted if there is no other option for recovering the loss from the direct infringer. In the case at hand, nothing prevents the photographer from suing the pupil, who is the only direct infringer. Under these circumstances, although the photographer was awarded a permanent injunction against the Land, his claim for damages was rejected. 
Picture on the left: (c) Dirk Renckhoff



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