Posting an image in the closed group on Facebook may be public copying and thus infringe copyrights.
The Munich Regional Court ruled on a claim against an exhibition visitor. The latter took photos of the exhibition and published 119 of them in a Facebook group with 390 members, which dealt with the murder case depicted in the exhibition. However, as an administrator, the woman granted access to the group to anyone who was interested in the topic. Since the photos showed almost the entire exhibition, the curators of the exhibition demanded the deletion of the photos and the issuance of a cease-and-desist declaration with a penalty clause. As Facebook deleted the photos, but the visitor did not want to make a declaration to cease and desist, the Regional Court issued a temporary injunction.
The plaintiffs were entitled to an injunction under Section 97 Para. 1 UrhG is entitled to a claim for injunctive relief. The exhibition is a “special exhibition” according to § 4 para. 1 UrhG protected collective work. By posting the photos to the Facebook group, the defendant violated the plaintiffs’ right to make their work publicly available. Furthermore, the Facebook group, despite its limited number of members, is to be considered as public.
It is a decision that probably occurs millions of times a day. The ECJ also recently ruled similarly. The uploading of a protected photograph actually always constitutes an act of communication to the public, since an act of exploitation is performed that the author had not thought of when granting a license.
Of course, the decision can also be applied to other networks and social media channels with supposedly non-public sections!
