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CJEU confirms that emailing a photograph to court as evidence is not communication to the public


United Kingdom

We blogged on the AG opinion (Advocate general advises that emailing a copyright protected photograph to court is not a communication to the public) in September and the CJEU has now delivered its succinct final ruling in BY v CX (C-637/19), confirming that emailing a copyright-protected document to court as evidence during proceedings is not a communication to the public.

Quick re-cap of the facts
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.
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 CJEU ruling
Communication to the public
The CJEU followed the AG opinion and began by helpfully restating the law on communication to the public as follows:

  • Sending a photograph by electronic mail, in the form of an electronic copy, does not fall within the concept of "distribution to the public" (which is concerned with physical copies) but within the concept of "communication to the public".
  • The concept of communication to the public includes two cumulative criteria - an act of communication of a work and the communication of that work to a public (Reha Training (C-117/15) and Nederlands Uitgeversverbond and Groep Algemene Uitgevers (C‑263/18)).
  • Any act by which a user gives access to protected works, with full knowledge of the consequences of that action, is liable to constitute an act of communication (Stichting Brein (C‑610/15) and that is the case where a protected work is transmitted by electronic means to a court as evidence in judicial proceedings between individuals.
  • For a communication to the public to occur, the copyright works must be communicated to a public, being an indeterminate number of potential recipients which implies a fairly large number of people (Reha Training and VCast C-265/16).
  • In relation to an indeterminate number of people, that means that the copyright work is perceptible to people in general and not restricted to specific individuals in a private group (Reha Training).

Application of the principles
Applying the above established principles on communication to the public to the facts of this case, the CJEU concluded (agreeing with the Advocate General) that emailing a copyright-protected work to the court as evidence in proceedings is not a communication to people in general but to specific individual professionals. The communication is to a clearly defined and closed group of people holding public service functions within a court, and not to an indeterminate number of potential recipients, thus this scenario cannot be considered to be a "communication to the public". The CJEU went on to say that the existence in national law of rules on access to public documents was irrelevant. Such access is granted not by the user who has sent the work to the court, but by the court itself to those individuals who make a request in accordance with the provisions under national law relating to access to public documents, which are not affected by the InfoSoc Directive.      
Balancing act
The CJEU pointed out that it is important to bear in mind, especially in an electronic environment, maintaining a fair balance between the interests of a copyright holder in protecting their IP right as guaranteed under Article 17(2) of the Charter of Fundamental Rights of the European Union and the fundamental rights of the users of protected works as well as public interest (Pelham (C-476/17). The CJEU said the right to intellectual property was not an absolute guarantee as it must be weighed up against other fundamental rights, which include the right to an effective remedy and a fair trial. The latter fundamental right would be seriously compromised if a copyright owner was allowed to challenge the disclosure of evidence to a court solely on the basis that it was copyright-protected.
This is a sensible and concise ruling which re-states clearly the settled case law on communication to the public and strikes the correct balance between the right to intellectual property and the fundamental right to an effective remedy and right to a fair trial. As the Advocate General neatly put it in his opinion, "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".

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