The right of communication to the public under Article 3(1) of the European Union’s InfoSoc Directive has been subject to nearly twenty references for a preliminary ruling to the Court of Justice of the European Union (CJEU). Over time, this exclusive right has become increasingly complex, and yet absolutely topical to online exploitation of works and enforcement of relevant copyrights.
Article 3(1) of the InfoSoc Directive does not define the concept of ‘communication to the public’. This provision, in fact, only states that European Union…
…Member States shall provide authors with the exclusive right to authorise or prohibit any communication to the public of their works, by wire or wireless means, including the making available to the public of their works in such a way that members of the public may access them from a place and at a time individually chosen by them.
Lacking a definition of the notion of ‘communication to the public’, the CJEU has sought to determine the meaning and scope of this concept in light of the objectives pursued by the InfoSoc Directive, notably to ensure a high level of protection of intellectual property (Recital 24) and for authors.
In its rich body of case law on Article 3(1) of the InfoSoc Directive, the CJEU has consistently stated that the essential requirements of Article 3(1) are an ‘act of communication’, directed to a ‘public’. In addition, the CJEU has also highlighted the importance of considering additional criteria which are not autonomous and are interdependent, and may – in different situations – be present to widely varying degrees. Such criteria must be applied both individually and in their interaction with one another.
So, what questions should you ask yourself when addressing communication to the public issues?
As part of my student materials (see here) and inspired by mandatory Summer reading, ie magazines and their relevant quizzes, I have created a little – simplified – chart on the right of communication to the public post-Ziggo [C-610/15, also known as The Pirate Bay case].
If you are interested in a more extensive discussion of the requirements under Article 3(1) of the InfoSoc Directive, see this recent paper of mine here.