Swedish Patents and Market Court of Appeal requests CJEU to clarify concept of “public” in new CJEU reference

Readers may know that the InfoSoc Directive does not expressly define the concept of “public”: it may not be clear whether that concept should be given a uniform interpretation within the framework of this piece of legislation. Could that concept of “public” be different when it relates to an act of communication within Article 3 as opposed to an act of distribution within Article 4?

The Swedish Patents and Market Court of Appeal (PMÖD) has just requested (available only in Swedish) the Court of Justice of the European Union (CJEU) to clarify this very question: does the concepts of “public” in Articles 3 and 4 of the InfoSoc Directive have a uniform meaning? if so, is a court a public with the meaning of these two provisions?


The background to this reference concerns two parties that operate their own respective websites. In separate proceedings, one of the parties (MA), submitted to the concerned court a copy of a text page containing a photograph that was taken from the other party’s (JJ) website. In turn, JJ claimed copyright infringement and damages from MA.

At first instance, the Patent and Market Court (PMD) established that copyright subsisted in the photograph and, by submitting it to the court, it meant that anyone could view that work under the domestic law provisions that relate to public access to information. Therefore, the PMD took the view that MA had communicated the work within the meaning of the Swedish Act on Copyright in Literary and Artistic Works (SCA). Ultimately, however, the action was dismissed since JJ had not suffered any loss.

The decision was subsequently appealed to the PMÖD. This has to determine whether copyright infringement subsists, through distribution or communication to the public, because the work in question was submitted to a court.

In this sense, the PMÖD has to establish whether a court can be considered a “public” within the meaning of Articles 3(1) and 4(1) of the InfoSoc Directive. These provisions have been incorporated through Articles 2(1) – (4) and 49a SCA. If a communication/distribution to public is deemed to subsist, the next question the court must ask is whether the exception under 5(3)(e) of the InfoSoc Directive is applicable.

However, according to the PMÖD, it is uncertain how the concept of public should be interpreted in light of EU law when the work in question is submitted during court proceedings, and whether that Court should be regarded as a public. In the referring Court’s view, the case law by the Court of Justice of the European Union (CJEU) does not answer this question.

Communication to the public

Recalling the CJEU’s decision in Reha Training (C-117/15), PMÖD considered that the concept of ‘communication to the public’ includes two cumulative criteria, namely an ‘act of communication’ of a work and the communication of that work to a ‘public’. The term “public” refers to an indeterminate number of potential recipients of the service and, in addition, must consist of a fairly large number of persons.

However, the “indeterminate nature of the public”, means that a work must be made perceptible in any appropriate manner to ‘persons in general’, that is, not restricted to specific individuals belonging to a private group.

In addition to the above, other contexts of communicating works to the public have included: (i) via radio and television receivers in pubs, hotels, health centres or rehabilitation centres, (ii) via links on websites for livestreaming of TV broadcasts, and (iii) through broadcasting of television signals by broadcasters to specific distributors (SGAE (C-306/05), FAPL (C-403/08), SBS Belgium (C-325/14), GS Media (C-160/15), and Imran Syed (C-572/17) when it comes to distribution).

Distribution to the public

It follows from Dimensione (C‑516/13), that the notion of ‘distribution to the public ... by sale’ in Article 4(1) of InfoSoc Directive has the same meaning as the expression ‘making available to the public … through sale’ in Article 6(1) of the WIPO Copyright Treaty. It is also clear from that judgment that, for there to be a distribution to the public, it is sufficient that the works in question have been delivered to a person of the public. However, the CJEU has not defined the concept of ‘public’. Therefore, even though the CJEU has stated that it is sufficient for the work to be delivered to a person of the public, the question remains whether the public in this context should be interpreted in the same way as a communication to the public (i.e. a uniform interpretation within the framework of the InfoSoc Directive).

Questions referred

According to the PMÖD, neither the court nor its staff can be considered “individuals in general” nor do they belong to a private circle. In addition, while the number of individuals who can access the work in connection with the handling of the case is limited to the employees of the court, that number may still be large.

The following questions have therefore been referred to the CJEU (please note that this is my own translation from Swedish; see also here):

1. Should the concepts of “public” in Articles 3(1) and 4(1) of the InfoSoc Directive be given a uniform meaning?

2. If yes, does a court constitute a public with the meaning of the two provisions?

3. If the answer to 1 above is no, a) does a court constitute a public when a work is communicated to the court? b) does a court constitute a public when a work is distributed to the court?

4. Is it relevant for the assessment that the submission of a copyright-protected work to a court amounts to a distribution or a communication to the public when provisions under domestic law, which relate to public access to information, set out that documents submitted to a court are on the outset available for anyone who requests to access them (unless confidentiality applies)?

Katpat to Kacper Szkalej and Branka Marušić for the news alert.
Swedish Patents and Market Court of Appeal requests CJEU to clarify concept of “public” in new CJEU reference Swedish Patents and Market Court of Appeal requests CJEU to clarify concept of “public” in new CJEU reference Reviewed by Nedim Malovic on Monday, September 09, 2019 Rating: 5

1 comment:

  1. Since any court dealing with a claim of infringement must be able to see the work which is the subject of the claim, and this necessarily means that a copy or copies must be made to allow this to happen, I would be amazed if the CJEU found that making copies available to the court for strictly judicial purposes involved any kind of public either in terms of Articles 2, 3 or 4. To find otherwise would lead to the absurd situation where a court would need to seek the permission of the right holder before it could hear a claim. In other words a right granted by the State was so powerful it rendered the State powerless carry out effective judicial oversight.

    The fact that it has never been necessary to spell this out in statute points to the obviousness of the answer. Once the CJEU make it clear that the legal process stands above such matters, the second part, ie whether the wider public beyond the court may lawfully see the copies which are the subject of the proceedings, falls squarely to be addressed by Art 5(3)(e) of the InfoSoc Directive, meaning that the making available issue is a legal exception. As for the fact that Article 4 is not covered by the Article 5 exceptions, I have always thought this was an absurd situation given the enormous overlap between Articles 3 and 4, especially where the internet is concerned. I rather expect the CJEU to duck that point because if it tries to address it head on it will dig a bear-trap for itself which will make the messy current situation over linking with and without authorisation look like a mere trifle.
    Yet another reason why, instead of getting bogged down with the Digital Single Market, the Commission would have been far better occupied coming up with a new InfoSoc Directive which was fit for the current digital world, and didn't require the CJEU to spend much of its time making up new law.


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