One of the few bright spots in US copyright law (along with DMCA Safe Harbors) is the legal principle of fair use – the idea that under certain conditions one can use a copyrighted work without permission. The various conditions include for educational purposes, commentary and criticism, and certain noncommercial uses.
Reuters reminds us that not all countries have similar legal doctrines. Yesterday they reported on a ruling in a German copyright infringement case where a student had copied a photo from a travel site:
The Court of Justice of the European Union (ECJ) ruling came after a secondary school student in Germany downloaded a photograph of Cordoba from a travel website to illustrate a presentation which was then published on the school website.
Photographer Dirk Renckhoff then sued the city of Waltrop and North Rhine-Westphalia for copyright infringement and 400 euros in damages. A German court then sought guidance from the Luxembourg-based ECJ, which went against a non-binding opinion from its adviser four months ago.
“The posting on a website of a photograph that was freely accessible on another website with the consent of the author requires a new authorisation by that author,” judges said.
“By posting on the internet, the photograph is made available to a new public,” they said.
I was asked on Twitter to explain why I thought this was a mistake.
It would seem obvious to me that educational use should be a valid exception from copyright law. After all, copyright exists for the benefit of society, and educating the next generation is to our collective benefit.
The concept of fair use is clearly established in US copyright law, and in fact Germany has a similar law. Furthermore, the EU copyright directive states that EU members can pass laws granting a copyright exception for education purposes.
But this court went against both common sense and existing policies to rule that because the student’s presentation was posted online, the copyright was infringed.
That is a terrible ruling, with a frankly nonsensical justification. It is based on the assumption that putting the photo online was a unique and special thing, when in fact everything is put online these days. It is 2018, and I am surprised the school hadn’t required the kid to put the presentation on Slideshare, Google Docs or some other online service because they wanted to the student to learn how to use the online tools.
The fact the court can’t see that is evidence of just how out of date they are and how little they know about modern times.