Book Review: The Right of Communication to the Public in EU Copyright Law

Communication to the public is a highly contentious area of copyright law, that is becoming increasingly important in the information society age, yet its boundaries and scope still remain somewhat of a mystery. In The Right of Communication to the Public in EU Copyright Law, Justin Koo sets out to rehabilitate the right by exploring the regulation, analysing its problems, and proposing a reformed right for EU Copyright Law. His ambition is to establish a reformed communication to the public right that is certain and proportionate.

The monograph is set out in eight chapters. It begins with a structural analysis of the EU copyright law, setting out the normative framework on which it is constructed. Chapter one argues that the principles of proportionality and certainty should guide the development of all copyright law from inception to application. In particular that all the competing interests should be accounted for, as well as other aspects of proportionality such as suitability and necessity. For certainty to be established, this requires more than clear and precise law, but also coherent and consistent application of that law.

Chapter two reflects specifically on the background and development of communication to the public (CTTP), under the different EU directives, and through the CJEU’s rationale for the development of the right and the criteria for infringement. Concerns are raised on the scope of communication, the validity of the new public criteria and the role of knowledge and the for profit criteria.

Chapter three explores some of the issues with the CTTP in more detail, including the broad interpretation of the right by the CJEU, the definition of the term communication, the role of the making available aspect, acts of reception in the public, the new public criteria and the for profit and knowledge criteria and their overlap with secondary liability. Koo then sets out several recommendations to address these issues, for example he argues that “communication” should be defined as “any act of transmission or provision of a work” – requiring direct contact with the work. This would limit the scope of the from its current state which is considered by many to include potential access to the work or offering the work to the public.

Demonsrtating direct contact
Image: Brittney Buckley

Following from this, chapter four then sets out Koo’s proposal for a reformed CTTP right, explaining how it would fit within the existing framework for EU Copyright law. This includes reconciling the proposed communication to the public right with the existing rights under copyright, and steps for complete harmonisation of CTTP.

Chapter five considers where the act of communication to the public occurs and who is responsible for the act, whereby Koo proposed a new Completion theory to aid the determination of jurisdiction and applicable law; which are discussed in chapters six and seven respectively. In addition, these chapters propose new copyright rules to account for the nuances of digital copyright law in the EU context.

The final chapter applies the proposals to a number of cases in order to demonstrate how the reformed law would operate in practice. It sets out the findings in some of the previous CJEU cases and explains how the finding would have been different under Koo’s proposed reformed law. For example, in Svensson the CJEU held that the provision of a clickable hyperlink to works freely available online did not amount to CTTP because the works were not made available to a new public. Under Koo’s proposed law, the finding would be the same, but the reasoning would be that there was no act of communication where there is no transmission or provision of the work.

This monograph offers a refreshing look at the right of communication to the public, making some ambitious proposals for reform, the utility of which is demonstrated particularly in the final chapter. The book would therefore appeal to anyone with an interest in communication to the public, and an open mind to how this messy area of law might be tidied up! It would be particularly useful for legislators, policy makers, judges, researchers looking at online copyright infringement in the EU.

Hart Publishing
Extent: 280
ISBN: 9781509920655
Hardback Price from Publisher: £65.00
Also available as PDF ebook and EPUB eBook: £63.18
Kindle: £61.75