AG Hogan advises CJEU to rule that disclosure of evidence containing protected content to a court is not a communication to the public

IPKat posts as evidence in court? Why not!
Image credits: Riana Harvey
Does the disclosure in court proceedings of a work protected by copyright or related rights amount to a ‘communication to the public’ and/or a ‘distribution to the public’ within the meaning of the InfoSoc Directive? Is the notion of ‘public’ in the right of communication/making available to the public in Article 3 therein to be intended in the same way as the notion of ‘public’ in the right of distribution in Article 4? How can copyright protection be reconciled with transparency obligations?

These, in a nutshell, are the issues that the Court of Justice of the European Union (CJEU) will have to address when it decides BY, C-637/19, a referral made by the Svea Court of Appeal, Patent and Market Court of Appeal, Stockholm, Sweden.

This morning, Advocate General (AG) Hogan issued his Opinion, in which he advised the Court to rule that the electronic transmission by a litigant or a party to proceedings of protected materials as evidence to a court does neither constitute a communication nor a distribution to the public. In any case, the mere fact that a document qualifies as a public document does not entail that the underlying material is also in the public domain.

Let’s see more in detail how the AG reasoned.


This request for a preliminary ruling was made in the context of a dispute between two private persons, each of whom operates a website. One of them (CX) sent a copy of a page of text, including a protected photograph, from the other party (BY)’s website as evidence in the court proceedings. BY holds the rights to the photograph and claimed that the disclosure made by CX amounted to infringement of copyright and/or related rights.

At first instance it was ruled that such disclosure did not qualify as a rights infringement in light of Swedish constitutional law on access to documents. 

BY appealed. 

The appellate court stayed the proceedings, as it considered it unclear whether:
  1. a court could be considered a ‘public’ for the purpose of copyright law (the referring court would be inclined to say no, although it should be noted that under Swedish law anyone has a right of access to documents received by a court) and
  2. the concept of public should be intended in the same way between Articles 3 and 4 of the InfoSoc Directive. The uncertainty is due to certain earlier CJEU case law, notably Dimensione [Katpost here], in which the Court held that – for there to be ‘distribution to the public’ – it is sufficient that the protected work has been delivered to a member of the public.
The AG Opinion

AG Hogan noted at the outset that this case “raises issues of some importance regarding the interaction of EU copyright legislation and national freedom of information, together with the right to an effective remedy and a fair trial” (as also guaranteed under Article 47 of the EU Charter of Fundamental Rights).

Notion of ‘public’

The AG (correctly) found that it would not be necessary to answer the question concerning the notion of ‘public’ between Articles 3 and 4, since it is apparent that the activity at issue in the background national proceedings would qualify as communication to the public, rather than distribution. 

As the CJEU confirmed in Tom Kabinet [Katpost here], the right of distribution is concerned with physical copies. In this case, the protected photograph was sent by email. Hence, there would be no need to engage Article 4 of the InfoSoc Directive.

Disclosure to a court of protected content

Turning to the other questions, the AG considered them as akin to asking – in a nutshell – whether the disclosure of protected content to a court by email would qualify as an act of communication to the public. 

According to the AG, whilst the communication of protected content to third parties performing administrative or judicial functions may very well surpass ‘a certain de minimis threshold’ (required for that communication to be to a public), it would still fail to be a communication to the public within Article 3(1) of the InfoSoc Directive “precisely because those persons, while not a private group per se, would nonetheless be constrained by the nature of their official functions. In particular, they would not be entitled to treat the copyrighted material as being free from copyright protection.” 

In addition, the exploitation at issue would not have any independent economic significance and would not be directed at an indeterminate number of potential recipients:
The communication would instead be aimed at a clearly defined and limited or closed group of people who exercise their functions in the public interest and who are, subject to verification by the referring court, bound by legal and ethical rules concerning, inter alia, the use and disclosure of information and evidence received in the course of court proceedings.
Court clerks on a break
The fundamental rights angle

The AG further added that, if copyright law were to prevent the disclosure as evidence of protected material, this would seriously compromise the right to an effective remedy and the right to a fair trial as guaranteed by Article 47 of the Charter.

In addition, while IP is protected under Article 17(2) of the Charter, its protection is not absolute and it must be fairly balanced or weighted against other Charter rights.

In any case, also under the Swedish transparency principle, it is not that a protected material enters the public domain “simply because it has been disclosed or exhibited or otherwise made available in evidence during the course of court proceedings.” In sum: “Swedish law does not envisage or permit copyright protection to be lost merely because one of the parties has exhibited that material in the course of civil proceedings and a third party can subsequently gain access to that material by virtue of Swedish freedom of information law.” If the contrary was true, then Sweden would be in breach of its obligations under EU law, including with regard to the InfoSoc Directive and Article 17(2) of the Charter.


The Opinion of AG Hogan follows a logical approach and the outcome appears to be a sensible one.

This said, despite the rather peculiar factual background, the referral in BY has the potential to allow the Court to reflect on the elusive notion of 'public' in at least the right of communication to the public (it does not in fact appear possible to consider, as the referring court did, that the situation at issue could qualify as distribution. In this sense, the AG was correct in saying that there is no need to address whether the notion of 'public' differs between Articles 3 and 4 of the InfoSoc Directive).

With regard to Article 3, the ‘public’, according to the CJEU and also considered by AG Hogan, in principle refers to an indeterminate and more than de minimis number of people; it thus excludes groups of persons which are too small or insignificant. Elaborating further, the ‘public’ requires “several unrelated persons”. 

This said, what or who qualifies as a ‘public’ still poses interpretative challenges. For instance, in STIM and SAMI (another referral from Sweden), one of the questions referred to the CJEU was whether the volume and characteristics of the defendant’s business activity (car rental companies and the duration of individual car rentals) would be relevant to the determination of whether there is an act of communication to the public. AG Szpunar held in the negative in his Opinion [Katpost here]. In the resulting decision, the CJEU did not consider it necessary to answer this question, having concluded that the activity at issue would not constitute an act of communication. 

The forthcoming BY decision might allow the Court to detail who and what the public is, thus contributing further to the construction of the right of communication to the public and the delineation of its scope.
AG Hogan advises CJEU to rule that disclosure of evidence containing protected content to a court is not a communication to the public AG Hogan advises CJEU to rule that disclosure of evidence containing protected content to a court is not a communication to the public Reviewed by Eleonora Rosati on Thursday, September 03, 2020 Rating: 5

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