EVA, CEPIC, EFJ and Pyramide Europe join powers in letter addressed to the European Institutions.

Brussels 14 May, 2018

JOINT Statement on the advocate general’ opinion of 25 April 2018 – Land NRW vs Dirk Renckhoff – CJEU 161/17

The undersigned organisations represent photographers, photojournalists, journalists, painters, sculptors, designers, architects and street artists.

Our organisations are deeply concerned that the statement of the General Advocate (GA) to the Court of Justice of the European Union, Mr MANUEL CAMPOS SÁNCHEZ-BORDONA, dated 25 April 2018 and concerning the case C–161/17 – Land NRW vs Dirk Renckhoff  could, if implemented, strongly damage authors’ position and the protection of their authors’ rights. We believe that the damage caused by the expropriation of authors require an immediate action by the European legislator.

Our members are much concerned that the General Advocate’s interpretations of EU legislation and jurisprudence applicable to hyperlinks and hot links in a school environment are denying the fundamental right of authors to rightfully exploit their works. In particular, the interpretation of what should constitute a “new” public could have devastating consequences for all authors willing to make their work available online.

Acts of communication to the public that are based on an act of reproduction – by storing copies of protected images on a server – before uploading on the internet have always required the consent of the authors and other right holders.

The GA advocates conditions for the recognition of authors’ rights. According to his statement, a photographer, for example, must deploy technological measures to protect her work – otherwise she should not even be able to benefit from the protection of authors’ rights law in case of infringements. However, it is broadly known that authors generally cannot enforce the use of paywalls and other technical control measures on those to whom they license images. By denying rights over subsequent uses not only for framing and embedding (making the work available to the same – internet – public) but also where a download to a different server takes place: this is unacceptable and a clear breach of authors’ rights.

The undersigned organisations urge the Court of Justice of the European Union not to follow the General Advocate’s interpretation of laws and jurisprudence.

At the same time they demand that EU legislators immediately:

• Clarify the EU legislation on digital reproductions and communication to the public within the framework of the Draft Directive on Copyright in the Digital Single Market and abandon the “new public” doctrine.

• Clarify that authors, including visual authors, and their representatives must not be forced to introduce technical protection measures, such as access control and pay walls, when they post their protected images on online services and ensure that the lack of protection measures does not remove authors’ from legal protection.

• Limit any exception to exclusive rights to clearly-defined cases of not- for-profit use which must comply with the Berne convention’s the Three-Step-Test and fulfil the strict condition of ensuring remuneration of all authors concerned, through mandatory collective management where appropriate. Exceptions that do not comply with these conditions should be null and void.

Read the pdf file here.