[Editor's note] Like most countries and regions in the world, The rulings of the Court of Justice of the European Union have important guiding significance and predictive value for understanding the legal norms of the European Union. Esabaril (ELZABURU) At the beginning of each year, typical cases of the Court of Justice of the European Union in the previous year are summarized and published, And a brief review of each case, In order to help customers and partners to understand the EU intellectual property norms. Given the importance of Chinese customers and partners, We try to publish the Chinese version of typical cases on a weekly basis, It is convenient for Chinese partners to learn the latest information in a timely manner.

　　 [background]

　　Dirk Renckhoff He was a German photographer, Authorized a travel website to publish several of his photographs. 2009 years 3 month 25 day, A school in the German city of Waltrop included it in a student project posted on its website Dirk Renckhoff A photograph of (Hereinafter referred to as "Controversial work" ) . The works in question were downloaded and uploaded to the school website by the students of the project, And identify the source of the picture. I want to emphasize that, The student did not encounter any technical restrictions when downloading the work in question.

　　Dirk Renckhoff Bring a lawsuit against the school's authorities in a German court——Waltrop City Council, And the agency responsible for supervising school education and hiring teachers——North Rhine-State government of Westphalia. The plaintiff asked the defendant to stop infringing the right to reproduce the work; The student downloaded the work in question and then re-uploaded it to the Internet without the permission of the author, Infringes the plaintiff's right to reproduce and disseminate his works to the public, The plaintiff shall be paid simultaneously 400 Euro damages.

　　The court of first instance partially upheld the plaintiff's claim. Both sides of the original defendant refused to accept the judgment of first instance, Separate appeals were filed at the Hamburg High District Court. after, The case was appealed to the German Federal Court, The court accepted the decision on whether the facts of the case satisfied the European Court of Justice C-466/12 No (Svensson case) Sum control C-160/15 No (GS Media case) As determined in the ruling "Communication to the public must exist 'new' Public group" request, Be in doubt. Therefore, Decided to stay the case and ask the European Court of Justice for a preliminary ruling on the relevant issues.

　　 [conclusion]

　　The European Court of Justice has clarified this several times "Directive of the European Parliament and of the Council on the harmonization of partial provisions on copyright and related rights in the information society (The first 2001/29/EC No) " (Hereinafter referred to as "European Union regulation 2001/29/EC Number instruction" ) The first 3. 1 prescribed "Communicate to the public (communication to the public) " behavior, There are two requirements: exist "The act of spreading a work" ; and, The object of the act of spreading works is "public" .

　　Therefore, European court of justice ruling, The evidence in this case shows that the defendant's conduct meets the requirements for communication to a new public group, The reason is that, Although the site that first published the work in question and the defendant's site had the same potential public audience, All the users of the Internet, But there is a fundamental difference in this case, The Defendant's website did not display the work by adding hyperlinks to the source website's publication of the disputed work to its pages, Instead, they download it from the source site and upload it again, Constitute a reupload and publish.

　　For that matter, The European Court of Justice stressed, Determine the composition of an action "Communicate to the public" , It must be demonstrated that the dissemination of the same work uses a different technical mode than the previous dissemination; or, The object of this communication behavior is "New public" , namely, Copyright owner (Plaintiff in the case Dirk Renckhoff) A public that was not considered when giving permission for initial distribution of his photography.

　　 [comment]

　　The new effect of this ruling is: Without acknowledging the possibility of new acts of communication to the public, Then the author will not have the right to control the first online distribution of his work. Therefore, The act of uploading a work to the Internet again constitutes a new act of communication, Completely independent of the first transmission authorized by the author. The ruling in this case is highly suggestive, You can see how does the European Court of Justice base this "European Union regulation 2001/29/EC Number instruction" The first 3. 1 Article related "Authors have the right to control the first distribution of their works" Stipulation of, And through Svensson case (Case number: C-466/12) , GS Media case (Case number: C-160/15) , Filmspeler case (Case number: C-527/15) and Pirate Bay (Case number: C-610/15) Adjudication of equal case, Step by step "Communicate to the public" The concept and scope of.

　　compile: Liu Dan, Esabarry Legal Counsel　　source: Esabaril (ELZABURU) Intellectual property rights