A discussion of a judgment of the Court of Amsterdam in Preliminary Relief Proceedings dated 16 October 2008 (Bruno Press B.V. / IMT B.V.), case list no. KG ZA 08-1710
By publishing photos on its website in which third-party copyrights were vested, the website holder has infringed that copyright, as a result of which this website holder was hold liable for the damage arising therefrom.
The claimant, Bruno Press, is a company aiming at the exploitation of photos, videos and news. The company exploits, inter alia, a data base with thousands of photos of, in particular, international celebrities. A large part of these photos was made by foreign photographers who are associated with foreign agencies. Bruno Press is a representative of these agencies in the Netherlands and offers the photos to third parties against payment via its data base.
The defendant, IMT, is exploiting the website http://www.showbiznewz.nl/. On this website, photos have been placed that Bruno Press, as the rightholder, markets in the Netherlands. This concerns 32 photos, including photos of model Doutzen Kroes.
Bruno Press has stated that the photos concerned are protected by copyright and that Bruno Press is the license holder of these copyrights. IMT would be infringing the copyrights and the moral rights of Bruno Press by placing the photos on its website without the approval of Bruno Press. Bruno Press has claimed removal of the photos and compensation of damages.
IMT has stated that it does not place the photos on its website itself but that this is done by visitors of its website to whom IMT gives the opportunity to upload photos. Although IMT has recognized that the photos of Bruno Press are protected by copyright and has therefore removed them from its website, IMT is of the view that it cannot be required to check at all times whether the material placed on its website by visitors is protected by copyright. IMT has said, however, that it will remove photos from its website after having been notified of and having established that there is copyright infringement.
The Court in preliminary relief proceedings has ruled that IMT cannot claim the legal protection against liability as applies to, for instance, hosting providers, who only create the possibility to use a website. After all, IMT actively takes part in the publication of the photos on its website. In addition thereto, by the inviting lay-out of its website, IMT would have taken the initiative to allow visitors to pass on information. The Court in preliminary relief proceedings was also of the view that IMT should have been aware that photos of celebrities are protected by copyright and that that right is not necessarily vested in the uploader of the photo. According to the Court, IMT has a certain obligation to investigate.
According to the Court, by giving the opportunity to infringe copyrights, IMT itself has actually infringed these rights, and the Court deemed IMT liable for the damage arising therefrom. A mere disclaimer on the website was deemed insufficient to exclude this liability.
In this case the website holder is deemed liable for infringing photos that it has placed and has allowed others to place on its website, in so far as the latter is actually the case. It is not clear how and whether visitors may indeed upload photos to the website themselves. The visitors may, however, forward photos via an email address. The photos would therefore actually be placed by the website holder itself.
Unlike website holders, hosting providers are only liable if they have been notified of the infringing material and – if evident unlawfulness has appeared – have subsequently failed to remove the material. In this case, visitors were invited to send their photos to the website holder and therefore there was a checking moment. The website concerned is not a forum where visitors themselves can exchange information and photos without the intervention of the website holder. The website holder determines what is published on its website. The judgment is not innovative in this respect, but only makes it clear once again that website holders must be attentive when they place or allow others to place third-party content on their website.