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The right to public communication is the exploitation right that results in most disputes, both as regards its content and its scope. We have devoted several blog posts (for example, on the audiovisual sector or e-books) to reporting on the various resolutions of the Court of Justice of the European Union (“CJEU”), due to their practical importance and the conflict they can generate. It has shaped this concept through its answers to the questions referred to it by Member States for preliminary ruling.

Advocate General Hogan has submitted his conclusions on case C-637/19, BY c. CX) answering the question referred by the Patents, Trademarks and Markets Court of Appeal based in Stockholm on whether submitting copyright-protected material in court proceedings can be held as an act of public communication within the meaning of Directive 2001/29 (the “Directive”) and, in particular, whether it can be considered addressed to a public.

Facts and question for preliminary ruling

The proceedings stemmed from a claim filed by BY, an individual operating a website, against CX, after the latter submitted a photograph on which the former claimed to hold copyrights in court proceedings without authorization. The claimant requested damages for infringement of those rights.

Accordingly, the referring court is unsure as to whether, and in what circumstances, transferring copyright-protected material to a court as evidence can be considered “communication to the public” within the meaning of the Directive and whether the court can be considered included in the concept of “public.” In this case, it must be kept in mind that the number of recipients, even if initially low, can grow considerably because Swedish law on transparency allows any data subject to access public documents, and documents submitted in proceedings are public.

An act of public communication requires two criteria to be met: first, there must be an act of communication and, second, it must be addressed to a public.

Although communications within court proceedings could meet the requirements of an act of communication, the Advocate General considers that this act of communication is not addressed to a public, as CJEU jurisprudence in recent years has outlined this concept. We should remember that, based on this case law, the concept of public refers to an “indeterminate number of potential listeners” and implies a “fairly large number of persons” (for example, see CJEU judgments in cases c-135/10, Del Corso; o c-162/10, Phonographic Performance).

Advocate General’s analysis

In this case, the AG believes that, although the recipients — public officials or court employees — are not a private group as such, the communication is not addressed to an indeterminate number of potential listeners. In reality, it is addressed to a restricted, set number, also restricted by the nature of their official functions, for the sake of the general interest, and by express or implied judicial and ethical rules and restrictions including rules on using or disclosing the information and evidence received within court proceedings.

In the AG’s opinion, submitting copyright-protected material in court proceedings guarantees the rights to effective legal protection and to a fair trial. These rights would be seriously undermined if a party to proceedings could not submit evidence if the other party, or even third parties, invoked the protection granted by copyright rules (point 45 of the conclusions). We must not forget the necessary balance that must be guaranteed between the intellectual property rights and the other rights established in the Charter of Fundamental Rights.

Finally, with regard to the Swedish regulations establishing a general principle of access to public documents (including documents submitted as part of proceedings) to anyone who requests them, unless they contain confidential information, the AG believes this disclosure does not imply a loss of the protection granted by copyright law insofar as it does not entail a right to use or possess those documents. However, the Advocate General warns that, if the law were different and, consequently, copyright could be effectively lost by simply exhibiting the copyrighted document in civil proceedings, Swedish law would infringe the European regulations (point 56 of the conclusions).

Based on this analysis, the Advocate General concludes that submitting protected photographic material in civil proceedings is an act of communication that, nonetheless, cannot be considered addressed to a public. As to whether the documents provided are considered public and transparency regulations allow any data subject to access them, the Advocate General believes this does not undermine copyright protection in this case.

Author: Marta Zaballos

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marta.zaballos@cuatrecasas.com