Background
Unauthorised publication of copyrighted images may be authorised when the images lead to the public understanding of significant problems or events. To take an example, the unauthorised use of sketches relying on copyrighted photographs of John Kennedy’s assassination was authorised due to public interest in the event. Another example: the individual who published the copyrighted photograph of John Belushi in a book about his death was not held liable for copyright infringement because it helped to promote free expression and robust debate on the event.
The facts of the Painer Case
The landmark case dealing with the public security exception is undoubtedly the Painer case. Mrs Painer, who is a freelance photographer specialised in children portraits, took photographs of an Austrian girl, Natascha Kampusch, with particular attention to the background, position and facial expression. During several years, she usually sold the photographs she made with her name and address on it. In 1996, Natascha Kampusch was kidnapped and the Police used the photograph at issue to launch a search appeal.
In 2006, Natascha, then aged 10 years, escaped from her kidnaper and before her first public appearance, magazine and newspaper publishers published this photograph in their newspapers, magazines and websites either without indicating the name of the photographer or indicating a name other than Ms Painer’s as the photographer. Several of these publications also featured a ‘photo-fit’, generated by computer from the contested photographs, to represent Natascha’s presumed current appearance, since there was no recent photograph of her. Ms Painer brought therefore the case in courts for copyright infringement. Several issues were addressed to the CJEU.
The decision of the CJEU
In this decision, the CJEU had to deal with Article 5(3)(e) of the Infosoc Directive, which provides a copyright exception for public security purpose. The specific issue addressed by the CJEU was whether the application of art.5(3)(e) requires a specific, current and express appeal for publication of the image on the part of the security authorities for search purposes, and if not, whether the media are permitted to rely on art.5(3)(e) should they decide, of their own volition and without a search request being issued, to publish a photograph in the interests of public security.
First, the CJEU held that the provision of the Infosoc Directive provides no conditions to which this exception can be applied and let therefore the Member States to do it though the national implementation laws. Second, the CJEU opined that the public security exception could only be invoked by the appropriate authorities, not the media. The Court decided therefore to reject the defendant’s arguments “that the media, in the name of the freedom of the press, should be allowed to avail themselves of art.5(3)(e) without a search notice from the authorities”.
In conclusion, the Painer case, dealing with Natascha Kampusch’s kidnapping, is a landmark case in this matter, since it clearly establishes the criteria to rely on public policy defences in copyright law.
