Following questions referred by the Svea Court of Appeal, Patents and Market Court of Appeal in Sweden, Advocate General Hogan recently handed down his opinion (BY v CX (637/19)) that the electronic transmission of copyright-protected material (here, a photograph) by a litigant or party to court proceedings, as evidence to a court, does not constitute a 'communication to the public' or a 'distribution to the public' under EU law.He went on to say that the mere fact that such evidence is considered a public document and that the public may, in principle, have access to the copyright material in accordance with national freedom of information or transparency rules does not mean that it then enters the public domain and is no longer protected by copyright i.e. the underlying copyright material does not become a free-for-all, just because it forms part of a document that has been submitted to the court as evidence and is therefore technically a public document.
BY and CX, two private individuals, both owned a website. During the course of a dispute in civil proceedings, CX emailed the court a copy of a page of text including a photograph, from BY's website as supporting evidence. It subsequently formed part of the documentary evidence in the proceedings and BY claimed that the photograph was protected by copyright and claimed damages for copyright infringement, which CX denied. The case made its way to the Svea Court of Appeal, which, in turn referred various questions to the CJEU for clarification.
Essentially these questions boiled down to whether, and if so, in what circumstances, the disclosure to a court by email of copyright material as evidence in the course of proceedings could amount to a communication to the public for the purposes of Article 3(1) or a distribution to the public for the purposes of Article 4(1) under the InfoSoc Directive (2001/29). Further, can a court be regarded as falling within the concept of 'public' under the InfoSoc Directive and should the term 'public' be given the same meaning for Article 3(1) and Article 4(1)?
The referring court highlighted the uncertainty as to the interpretation in EU law of the concepts of 'communication to the public' and 'distribution to the public'.
On the one hand, in relation to communication to the public, the CJEU has held that the concept of ‘public’ refers to an indeterminate number of potential addressees and involves a fairly large number of persons. It further emphasised that the aim is to make a work perceptible in any manner appropriate to ‘persons in general’, as opposed to specific persons belonging to a private group (Reha Training (C-117/15)).
However, on the other hand, in Dimensione Direct Sales and Labianca (C‑516/13)), the CJEU held that for there to be ‘distribution to the public’ it is sufficient that the protected work has been delivered to a member of the public.
The referring court also needed guidance on the conflict in national law between copyright protection and transparency rules – Swedish law on Freedom of the Press allows a right for everyone to access public documents (and any procedural document transmitted to a court, in any form, is considered a public document).
The AG commenced by highlighting that the case raised important issues in relation to the interaction of EU copyright legislation and national freedom of information, together with the right to an effective remedy and a fair trial (as guaranteed by Article 47 of the Charter of Fundamental Rights of the European Union (the Charter)).
The term 'public'
In relation to whether the term 'public' in Articles 3(1) and 4(1) had a uniform meaning, the AG's view was that this was not relevant since the case of Tom Kabinet (C-263/18) confirmed that the right of distribution is concerned with physical copies - "in order for there to be a ‘distribution to the public’ pursuant to Article 4(1) of Directive 2001/29, the work must be put into circulation as physical copies, material items or tangible objects. That particular requirement of Article 4(1) of Directive 2001/29 is not met when transmitting a work in intangible form by email". Therefore, Article 4(1) would not come into play in this case.
Communication of protected material to a court
The remaining questions therefore centred on whether the current scenario constituted a 'communication to the public'.
Advocate General Hogan reminded us that at the heart of the protection conferred by Article 3(1) of the InfoSoc Directive lies the idea that the copyright holder is entitled to protection against the communication or the making available of the copyrighted material to the ‘public’. Therefore, subject to the exceptions and limitations under Article 5 of that directive, all acts of communication to the public of a work by a third party require the prior consent of its author.
He went on to say that even though the communication of protected material to third parties performing their administrative or judicial duties 'may very well surpass 'a certain de minimis threshold'') given the number of people potentially involved (and would therefore constitute the requisite 'public'), he would not normally consider this scenario to be a 'communication to a public' as envisaged by Article 3(1). This is because, even though not a private group, those people would be constrained by the very nature of their official role and they would not be allowed to treat the protected material as being free from copyright protection. They could not do as they pleased with the material and any further use of it, beyond the initial communication to those people in their administrative/judicial capacity, would be subject to various express or implied legal and ethical restrictions, including copyright, under national law. Therefore, despite a potentially high number of officials involved, the communication should not be considered to be to an indeterminate number as required by the court in SGAE v Rafael Hoteles (C-306/05). "The communication would instead be aimed at a clearly defined and limited or closed group of people who exercise their functions in the public interest and who are, subject to verification by the referring court, bound by legal and ethical rules concerning, inter alia, the use and disclosure of information and evidence received in the course of court proceedings".
Balance of fundamental rights
As the AG pointed out, the intellectual property rights enshrined in Article 17(2) of the Charter are not absolute rights but must be balanced or weighted against other rights guaranteed by the Charter. As such, in his view, the communication of copyright material to a court as evidence in judicial proceedings did not, in principle, undermine the exclusive rights of the copyright holder of that material by, for example, depriving them of the opportunity to claim an appropriate reward for the use of the work. To be able to submit copyright material as evidence in civil proceedings ensured the right to an effective remedy and the right to a fair trial as guaranteed by Article 47 of the Charter – "the rights of defence of a litigant would be seriously compromised if he or she were unable to submit evidence to a court in the event that another party to those proceedings or indeed a third party invoked copyright protection in respect of that evidence".
Access to public documents under national law
AG Hogan said that when a litigant emails copyright content as evidence to a court, this is not communication to the public by the litigant because ultimately it is the court that has the final say in granting access (or not) under national freedom of information and transparency rules. Further, any disclosure of copyright material under such freedom of information/transparency rules does not then mean that that material subsequently loses its copyright-protected status and therefore enters the public domain. It must be the case that "Swedish law does not envisage or permit copyright protection to be lost merely because one of the parties has exhibited that material in the course of civil proceedings and a third party can subsequently gain access to that material by virtue of Swedish freedom of information law". Any conclusion to the contrary would find Sweden in breach of its obligations under EU law.
This adds to the ever-evolving body of case law on what constitutes communication to the public and it does appear to be a sensible opinion, and one that is likely to be followed by the CJEU. However, it would perhaps be helpful to obtain further clarification from the CJEU as to who/what exactly is the requisite 'public'.
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