The Court of Justice of the European Union (CJEU) stated that the transmission of a work protected by copyright to a court, as evidence in a judicial proceeding between individuals, does not fall within the concept of “communication to the public” referred to in Article 3(1) of Directive 2001/29 (so-called “Infosoc Directive”).
The case
The judgment of October 28, 2020, passed in case C-637/19, originates from a dispute before the Swedish civil court in which a party submitted as evidence an electronic copy of a web page of the other party containing a photograph. The other party, who holds the copyright on the photograph in question, requested the user to be ordered to pay damages for infringement of copyright under national law.
The Swedish Court of Appeal, which has jurisdiction in the field of intellectual property, has therefore referred the question to the CJEU for a preliminary ruling concerning the interpretation – in two ways – of the concept of “public” within the meaning of Article 3(1) (on the right of communication to the public) and Article 4(1) (on the right of distribution) of the Infosoc Directive.
First of all, the referring court questioned whether that concept of public had the same meaning in both provisions. In this regard, the European Court has made it clear that “the communication to the public of a work, other than the distribution of its material copies, does not fall within the concept of ‘distribution to the public’, as referred to in Article4(1) of Directive 2001/29, but in that of ‘communication to the public’ within the meaning of Article 3(1) of that Directive.”
Once it was defined that the scope of application relates to the right of communication to the public, the referring court questioned whether the “communication to the public” also includes the electronic transmission of a work protected by copyright to a court as evidence in judicial proceedings.
In reply to this second question, the Court stated that, in order for an act of communication to be carried out to the public within the meaning of that provision, the protected work must be effectively communicated to an audience, to be understood as an “indeterminate number of potential recipients and includes, moreover, a fairly considerable number of individuals”. In particular, it is stressed that the work must be perceptible to a general audience of both potential and indeterminate recipients.
However, the CJEU points out that, in the present case, those conditions cannot be found in view of the fact that the communication in question is addressed to a specific group of well-identified and determined professionals. It is in fact a defined and delimited group of recipients who become aware of the work in the performance of their duties, carried out in the public interest and in a court.
Conclusions
The Court of Justice therefore concludes that the electronic transmission of a work protected by copyright as evidence in judicial proceedings does not constitute a communication to the public within the meaning of Article 3(1) of the Infosoc Directive and, therefore, does not constitute an infringement of the copyright of its holder.