The Communication to the Public is (Hyper) Linked to the Role of the User

On 31 May 2016, the European Court of Justice (ECJ) issued its decision on the much-discussed issue of the requirements for a “communication to the public” in copyright infringement cases. It provided new guidelines on the interpretation of the article 3(1) of the InfoSoc Directive and article 8(2) of the Rental and Lending Rights Directive. The opportunity was given by the Regional Court of Cologne (Germany) that made a request for a preliminary ruling in the proceeding Reha Training v. GEMA, concerning the TV broadcast by means of TV sets on the premises of a rehabilitation centre. According to GEMA (the German copyright collection society), Reha Training failed to request permission and to pay the due royalties for communicating to the public TV programmes which belong to its repertoire.

In order to establish whether or not Reha Training have put in place an unauthorised communication to the public, the ECJ has been asked to clarify what the “public” is. The confusion has arisen from SFC v. Marco Del Corso, when the ECJ ruled that the patients of a dental practice constitute a private group, as they are usually a small group of people, who do not choose to be exposed to certain content showed in a waiting room.

Given that the interpretation of “communication to the public” in the InfoSoc Directive and the Rental and Lending Rights Directive must coincide, in light of the unity and coherence of the European legal system, the ECJ held that two cumulative criteria shall be considered: (i) the act of communication; and (ii) the communication to the public.

As previously held by the ECJ in SBS Belgium, any transmission of protected work can be an act of communication, as there are no specific means or process to refer to. By contrast, slightly more articulated is the concept of public, which not long ago has been the subject of the debated Svensson case. To fall within the meaning of the word “public”, a group of people must be an unspecified but generally large number of persons, which do not belong to a private group. Additionally, the public must be “new”, which means that it was not considered by the author at the moment of the authorisation to communicate the work to the public.

Apart from the abovementioned criteria, what seems to have a bigger impact on the ECJ jurisprudence is the role of the user. Thus, according to the ECJ, the user is performing an act of communication to the public if he/she gives access to the protected work intentionally, so that the public is not just exposed to the work by chance, but it is the specific target of the user. However, the Court highlighted that the user does not necessarily need to make a profit through the unlawful broadcast, but it may simply aim to enhance the attractiveness of its business.

With regard to the implications of the Reha Training case, it might have a tangible influence on the linking quarrel, in as much in Svensson, a “link” has been considered a communication to the public because it allows the public to access the unlawful content, whether or not the link is actually used by the public, but things may change in GS Media. In fact, AG Wathelet recently stated that a “hyperlink” does not generally make content available but merely enables the finding of that material which is already available to the public. Certainly, this is not the case when the hyperlink constitutes an “indispensable intervention without which those users could not enjoy the works”. In this case, no doubt we are in front of an act of communication to the public which must be duly authorised.
This said, we need to wait and see whether or not the mentioned interpretation of “communication to the public” will bring the ECJ on the right track for a turnaround of the Svensson approach in a more Internet-friendly direction.

By: Serena Totino

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