The Relevance of Prior Knowledge on the Existence of Copyright in Balancing Freedom of Expression and Copyright Integrity in Renckoff (C-161/17)
The Relevance of Prior Knowledge on the Existence of Copyright in Balancing Freedom of Expression and Copyright Integrity in Renckoff (C-161/17)

Summary/Abstract: Does an internet user act illegally when she transfers a photo from a website to another website when the first website does not inform her on the copyright? In Renkoff the Advocate General and the ECJ gave different answers. The different answers result from contrary interpretations of the right of communication to the public as an element of the copyright, and in particular from different evaluation of the relevance of knowledge on the existence of the copyright on the photo. The consideration of their opposite approaches to the relevance of knowledge is of importance for striking a fair balance between copyright and the freedom of expression. In interpreting the right of communication to the public, the ECJ was selective in its consultation of the context. The InfoSoc Directive contains provisions that indicate relevance of knowledge in constituting liability for copyright infringements. If the ECJ had taken them into consideration, it may well have come to an interpretation similar to the interpretation of the Advocate General, and thus established a better balance between copyright and the freedom of expression.

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